[2011] KEHC 395 (KLR)
The court found that the applicant was not notified of the judgment date and only became aware of the judgment after it was delivered. The applicant acted promptly to obtain the proceedings and judgment, and a certificate of delay was issued by the court. There was no evidence of undue delay or fault on the part of...
Source-derived case information.
- Citation
- [2011] KEHC 395 (KLR)
- Parties
- Applicant: Benson Wandera Nyongesa; Respondent: Steel Plus Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 414 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Industrial Accident Claims, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Wandera Nyongesa
Applicant
Steel Plus Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the judgment delivered in the industrial accident claim.
- 2 Whether the delay in filing the appeal was justified and not occasioned by the applicant's fault.
Ratio Decidendi
The court found that the applicant was not notified of the judgment date and only became aware of the judgment after it was delivered. The applicant acted promptly to obtain the proceedings and judgment, and a certificate of delay was issued by the court. There was no evidence of undue delay or fault on the part of the applicant. The respondent did not oppose the application. Accordingly, the court exercised its discretion to allow the application for leave to file an appeal out of time, finding that the interests of justice required the applicant be given an opportunity to appeal the dismissal of his claim on quantum.
Court Disposition
application allowed
Orders
- Leave to file appeal out of time is granted.
- The applicant shall file and serve the memorandum of appeal upon the respondent within 14 days.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
MISC. APPLICATION NO. 414 OF 2011
BENSON WANDERA NYONGESA ……..........……..………….……... APPLICANT
VERSUS
STEEL PLUS LIMITED ……………...…….……..………………...… RESPONDENT
R U L I N G
Application For Leave To File Appeal Out Of Time
I.BACKGROUND
1. The original court case arose out of a claim for damages in an industrial accident case filed by the applicant/employee herein. The applicant alleged that he had been hit by a metal object in the cause of his employment with the respondent. The trial magistrate in her judgment held that no breach of duty was to be found with the employer. The suit was dismissed and the possible award to be made was placed at
Ksh. 40,000/= in general damages by the Hon. Trial Magistrate on
3rd June 2011.
2. The employee was not aware of this judgment. Time to file an appeal had lapsed. By an application of 27th September 2011, the appellant filed an application to file appeal out of time.
IIAPPLICATION DATED 27TH SEPTEMBER 2011
3. The reasons why the application to file appeal out of time was made is that after the parties had agreed on liability of 80%:20% ratio, it was the issue of quantum that had been left. After trial, judgment was to be delivered. This was not done until 12 months had elapsed and without notice to the appellant.
4. The applicant came aware of the delivery of the judgment (having been delivered on 3rd June 2011) on 10th June 2011. He requested for the proceedings and judgment which was not availed until
August 2011. A certificate of delay was issued by the courts between 28th June 2011 and 2nd August 2011.
5. The appellant prayed for leave to appeal out of time.
6. The respondent’s advocates were served and are absent. No grounds of opposition and on replying affidavit had been filed.
IIIFINDINGS
7. The applicant has demonstrated that there was judgment already entered in his favour on liability. The issue of quantum was dismissed. He wishes to appeal but was not able to do so as he was never informed of the date of judgment.
8. I would find that the application was not brought with undue delay. A certificate of delay has been supplied with the application from the court.
9. The application for leave to appeal out of time dated
27th September 2011 be and is hereby allowed. An appeal be filed and notice of memorandum of appeal be filed and served upon the respondent within 14 days.
DATED THIS 19TH DAY OF OCTOBER 2011 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
iii)N.A Owino instructed by M/s N.Owino & Co advocates for the appellant
iv)Non appearance for the respondent