[2004] KEHC 1230 (KLR)
The court found that the applicant failed to demonstrate good and sufficient cause for the delay in filing the appeal. The reasons advanced, including the absence of counsel at judgment, the advocate's departure from the firm, and the alleged missing court file, were not substantiated or persuasive. The court noted...
Source-derived case information.
- Citation
- [2004] KEHC 1230 (KLR)
- Parties
- Applicant: Beiersdorf East Africa Ltd; Defendant: Monks Medicare Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 174 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Extension of Time, Appeal Out of Time, Sufficient Cause, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beiersdorf East Africa Ltd
Applicant
Monks Medicare Ltd
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated good and sufficient cause for failing to file the appeal within the prescribed time.
- 2 Whether the reasons advanced for the delay justify the exercise of the court's discretion to enlarge time for filing an appeal.
Ratio Decidendi
The court found that the applicant failed to demonstrate good and sufficient cause for the delay in filing the appeal. The reasons advanced, including the absence of counsel at judgment, the advocate's departure from the firm, and the alleged missing court file, were not substantiated or persuasive. The court noted that the applicant's counsel was aware of the judgment date, there was no evidence of the court file being missing, and proceedings were made available promptly. Furthermore, the applicant did not require the proceedings to file the memorandum of appeal, and no certificate of delay was exhibited. Consequently, the court exercised its discretion against the applicant and...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for leave to file appeal out of time is dismissed.
- The applicant shall pay the costs of this application to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
BEIERSDORF EAST AFRICA LTD ………….………… APPLICANT
VERSUS
MONKS MEDICARE LTD …………………..………….. DEFENDANT
RULING
This is an application for leave to file appeal out of time. Judgment was delivered on 18th of September, 2003 and this application for enlargement of time was made on 19th February, 2004 exactly five months after delivery of Judgment.
The reasons cited for this rather inordinate delay are that (i) Judgment was delivered on 18th September, 2003 in the absence of the Applicant’s advocate; (ii) the Advocate having the conduct of the matter left the Applicant’s firm; (iii) the Court file went missing; (iv) the Applicant’s Counsel was awaiting delivery of the proceedings to prepare the Memorandum of Appeal; and (v) there is an arguable appeal. I have perused the material before this Court and find as follows:
1. By his own admission, the Applicant’s Counsel knew that Judgment would be delivered on 18th September, 2003, and in fact sent his court clerk to find someone to hold his brief. It was not as if he found out about the Judgment much later.
2. The Advocate’s departure from his firm does not, in my view, constitute a good and sufficient cause to file appeal out of time. It is common knowledge, especially with a huge increase in the number of advocates now practicing before these Courts, that their mobility and transfer has also increased. If this were allowed to be a good excuse for a law firm’s tardiness, I would send a wrong signal to law firms, and perpetuate a never-ending mischief, that will give rise to more carelessness and tardiness in the profession.
3. There is absolutely no evidence of the Court file missing. On the contrary, when the Applicant’s Counsel applied for proceedings on 4th November, 2003 he got a response on 22nd January, 2004 that the proceedings were ready for collection. I must say that even I am surprised with our Registry’s efficiency in making proceedings available within 6 weeks. In any event, Counsel did not require the proceedings to prepare and file his Memorandum. All he needed was a decree or order appealed from, which also could have been filed later, if unavailable at the time of filing the Memorandum of Appeal. The Applicant has not exhibited a Certificate of delay from the registry to indicate that the decree or order appealed from had been delayed.
Accordingly, and for reasons outlined, I am not satisfied that the Applicant has made out a good and sufficient cause for not filing this appeal in time, and is, therefore, not entitled to the discretion sought in accordance with
Section 79 G of the Civil Procedure Act. This application is, therefore, dismissed with costs to the Respondent.
Dated and delivered at Nairobi this 8th day of December, 2004.
ALNASHIR VISRAM
JUDGE