[2017] KEHC 8561 (KLR)
The court found that the delay in filing the memorandum of appeal was satisfactorily explained by the applicant, who had erroneously filed a notice of appeal instead of a memorandum of appeal due to counsel's mistake. The court held that such an error should not be visited upon the litigant, especially in the...
Source-derived case information.
- Citation
- [2017] KEHC 8561 (KLR)
- Parties
- Applicant: Bamburi Special Products Limited; Respondent: Richard K. Samoei T/A Sondu Service Station
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 216 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Extension of Time, Appeals From Subordinate Courts, Judicial Discretion, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bamburi Special Products Limited
Applicant
Richard K. Samoei T/A Sondu Service Station
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for delay in filing the memorandum of appeal out of time.
- 2 Whether the court should exercise its discretion to extend time for filing the appeal.
Ratio Decidendi
The court found that the delay in filing the memorandum of appeal was satisfactorily explained by the applicant, who had erroneously filed a notice of appeal instead of a memorandum of appeal due to counsel's mistake. The court held that such an error should not be visited upon the litigant, especially in the absence of fraud or intention to overreach. The court exercised its discretion under Section 79G of the Civil Procedure Act and relevant case law to allow the application for extension of time, emphasizing that the right to be heard on the merits should not be denied due to procedural blunders by counsel.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file and serve a memorandum of appeal out of time.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL MISC. APPL. NO. 216 OF 2016
BAMBURI SPECIAL PRODUCTS LIMITED ..............PLAINTIFF
VERSUS
RICHARD K. SAMOEI
T/A SONDU SERVICE STATION.............................DEFENDANT
RULING
1. The application dated 17th May, 2016 seeks orders that the Applicant be granted leave to file and serve a Memorandum of Appeal out of time.
2. The application is premised on the grounds stated on the face of the application and is supported by the affidavit sworn by Wambugu Gitonga, counsel for the Applicant. The delay in filing the appeal is blamed on the erroneous filing of a Notice of Appeal instead of a Memorandum of Appeal as required by the rules of procedure. It is further stated that this was a mistake by the Advocate and that the same should not be visited on the litigant. That the appeal raises triable issues and has overwhelming chance of success.
3. The application is opposed. According to the replying affidavit, judgment was entered on 11th November, 2015 and the Notice of Appeal was served on the 18th November, 2015. It is stated that the delay of about three months in filing the instant application has not been explained and that the appeal does not raise any triable issue.
4. I have considered the application and the reply to the same.
5. Section 79G of the Civil Procedure Act provides that:
“Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order. Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
(See also Section 59 of the Interpretation and General Provisions Act and Order 50 rule 6 Civil Procedure Rules and Section 3A Section 95 of Civil Procedure Act Cap 21 Laws of Kenya)
6. The court therefore has the discretion to extend time within which to file an appeal. As stated by the Court of Appeal in the case of Aviation Cargo Limited v St. Mark Freight Services Limited [2014] eKLR:
“....whether or not to grant extension of time or leave to file and serve record of appeal out of time is discretionary. Such discretion is exercised judicially with a view to doing justice. Each case depends on its own merit. For the Court to exercise its discretion in favour of an applicant, the latter must demonstrate to the Court that the delay in lodging the record of appeal is not inordinate and where it is inordinate the applicant must give plausible explanation to the satisfaction of the Court why it occurred and what steps the applicant took to ensure that it came to Court as soon as was practicable. In the normal vissiccitudes of life, deadlines will be missed even by those who are knowledgeable and zealous. The Courts are not blind to this fact. When this happens, the reason why it occurred should be explained satisfactorily including the steps taken to ensure compliance with the law by coming to Court to seek extension of time or leave to file out of time. “
7. Turning to the case at hand, the judgment of the lower court was delivered on 11th November, 2015. The memorandum of appeal ought to have been filed on or before 10th December, 2015. The application at hand was filed on 19th May, 2016. There was a delay of slightly more than five months. The delay has been explained. The notice of appeal that was erroneously filed has been exhibited herein. The same has a court stamp which reflects that it was filed on 17th November, 2015. The explanation given is satisfactory. As stated by the Court of Appeal in the case of Philip Chemowolo & Another v Augustine Kubede, [1982-88] KAR103 at 1040:
“Blunders will continue to be made from time to time and it does not follow that because a mistake had been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.”
8. With the foregoing, I allow the application with costs to the Respondent.
Dated, signed and delivered at Nairobi this 15th day of March, 2017
B.THURANIRA JADEN
JUDGE