[2017] KEHC 8218 (KLR)
The court found that the appeal was filed out of time without leave of the court, contrary to Section 79G of the Civil Procedure Act. The application for extension of time was an attempt to circumvent the preliminary objection, but the court held that rules of procedure exist to ensure order and fair play. Article...
Source-derived case information.
- Citation
- [2017] KEHC 8218 (KLR)
- Parties
- Appellant: Benjamin Moilem; Respondent: Samwel Tambo Otieno; Respondent: Wais Capital Limited; Respondent: Mambo Leo Wines Spirit Suppliers Limited
- Court
- High Court
- Court Station
- High Court at Kapenguria
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 7 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- preliminary objection allowed; appeal and applications dismissed with costs to 2nd respondent
- Judges
- AM Githinji
- Legal Topics
- Appeal Out of Time, Jurisdiction, Preliminary Objection, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Benjamin Moilem
Appellant
Samwel Tambo Otieno
Respondent
Wais Capital Limited
Respondent
Mambo Leo Wines Spirit Suppliers Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the appeal was filed out of time without leave of the court contrary to Section 79G of the Civil Procedure Act.
- 2 Whether the court has jurisdiction to entertain an appeal filed out of time without leave.
- 3 Whether the application for extension of time can be heard before the preliminary objection.
Ratio Decidendi
The court found that the appeal was filed out of time without leave of the court, contrary to Section 79G of the Civil Procedure Act. The application for extension of time was an attempt to circumvent the preliminary objection, but the court held that rules of procedure exist to ensure order and fair play. Article 159(2)(d) of the Constitution does not override statutory requirements that go to the jurisdiction of the court. As such, the court lacked jurisdiction to entertain the appeal and any applications arising from it. The preliminary objection was upheld, and the appeal and related applications were dismissed with costs to the 2nd respondent.
Court Disposition
preliminary objection allowed; appeal and applications dismissed with costs to 2nd respondent
Orders
- The preliminary objection is allowed.
- The appeal and the applications founded on it are dismissed with costs to the 2nd respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAPENGURIA
CIVIL APPEAL NUMBER 7 OF 2016
BENJAMIN MOILEM.....................................................................PETITIONER
VERSUS
SAMWEL TAMBO OTIENO...............................................1ST RESPONDENT
WAIS CAPITAL LIMITED..................................................2ND RESPONDENT
MAMBO LEO WINES SPIRIT SUPPLIERS LIMITED....3RD RESPONDENT
RULING
The plaintiff’s application dated 22. 1.2014 was dismissed by Hon. D. M. Machage on 2. 6.2016. The plaintiff dissatisfied with the said ruling filed a memorandum of appeal on 8th July, 2016. There was also an application for stay of execution, under certificate of urgency, filed by the plaintiff/applicant on 1. 7.2016. It was heard exparte and some orders granted on 26. 7.2016. Interparte hearing was for 17. 8.2016. the 2nd Respondent filed a Notice of Preliminary Objection on 16th day of August, 2016 on the grounds that the appeal was filed out of time contrary to Section 79G of the Civil Procedure Act, of which deprives the court jurisdiction to entertain the appeal and the applications arising therefrom.
On 17. 8.2016 the parties agreed the preliminary objection be heard first on 27. 9.2016. On this date parties indicated of their intention to settle the matter out of court and requested for hearing on 17. 10. 2016. On 17. 10. 2016 the application was not heard. On 15. 11. 2016 the applicant filed yet another application seeking various orders of which one was for extension of time with which to file a memorandum of appeal and that the memorandum of appeal filed and served on 8. 7.2016 be deemed as properly and duly served. The applicant wanted this application heard before the preliminary objection, arguing that it will determine the issue raised in the preliminary objection. The said request was rejected by the court and preliminary objection was heard.
Parties are in agreement that the appeal was filed out of time and leave was not sought. It was therefore filed contrary to the provisions of Section 79G of the Civil Procedure Act. The application dated 15. 11. 2016 was aimed at circumventing the issue raised in the preliminary objection. Rules of procedure are in place to ensure order and fair play in conduct of suits for integrity of the process. Provisions of Article 159(2)(d) of the Constitution which reads that:-
“Justice shall be administered without undue regard to procedural technicalities”
is not a panacea for procedural defects meant to ensure speedy and fair trial. The applicant had a better option of withdrawing the application and the appeal and following the right procedure. I am persuaded that this court has no jurisdiction to hear an application founded on an appeal filed out of the allowed time in law, without leave of the court. The preliminary objection is allowed. The appeal and the applications founded on it are dismissed with costs to the 2nd respondent.
Ruling read and signed in the open court in presence of Mr. Mark for the State and the Appellant in person this 24th day of January, 2017.
S. M. GITHINJI
JUDGE