[2009] KEHC 2524 (KLR)
The court found that the appeal had been filed out of time and that no application for leave to file the appeal out of time had been made. The respondent's attempt to reinstate the application was procedurally improper, as it merely repeated the contents of the previously struck-out application without providing...
Source-derived case information.
- Citation
- [2009] KEHC 2524 (KLR)
- Parties
- Appellant: Brooke Bond (K) Ltd; Respondent: Benson Nyakoe Nyaganda
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 35 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- appeal dismissed and struck out on preliminary objection
- Legal Topics
- Appeal Out of Time, Preliminary Objection, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brooke Bond (K) Ltd
Appellant
Benson Nyakoe Nyaganda
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the appeal was filed out of time without leave of court.
- 2 Whether the court had jurisdiction to entertain the appeal filed out of time.
- 3 Whether the preliminary objection on limitation was properly raised.
Ratio Decidendi
The court found that the appeal had been filed out of time and that no application for leave to file the appeal out of time had been made. The respondent's attempt to reinstate the application was procedurally improper, as it merely repeated the contents of the previously struck-out application without providing good cause. The preliminary objection regarding limitation was upheld, and the court held that it lacked jurisdiction to entertain the appeal filed out of time without leave. Consequently, the appeal was dismissed and struck out.
Court Disposition
appeal dismissed and struck out on preliminary objection
Orders
- The preliminary objection is upheld.
- The appeal is dismissed and struck out.
Full Case Text
Judgment text and source record
21 paragraphs
BROOKE BOND (K) LTD …………………………………….. APPELLANT
VERSUS
BENSON NYAKOE NYAGANDA …….…………………… RESPONDENT
RULING
I: Background
1. The Respondent being dissatisfied with a ruling within a trial made by the magistrate, applied to appeal against the same. The trial magistrate granted the application to appeal within 30 days a stay of proceedings was also granted.
2. The file was placed before the Hon. Judge and on 9th June, 2004 (L. Kimaru J) it was admitted for hearing.
3. The directions was taken up on 31st March, 2009. The Applicant/Respondents application had been dismissed for non attendance on 2nd December, 2008. The Applicant/Respondent instead of giving good cause why the said application should not be reinstated, files a notice stating the very same thing as the application that was struck out on 2nd December, 2008.
4. Objection to the court’s jurisdiction requires to be taken prior to the hearing of an appeal.
5. In response the Appellant/Respondent’s advocate states order XLIXCivil Procedure Rules should apply.
6. To enlarge time an application under order LI r 1Civil Procedure Rules as read with order XLIXCivil Procedure Rules should be made by chamber summons in the same file or by originating summons in a file not before Court.
7. It was therefore noted that the appeal had been filed out of time. No leave to apply to file the same within time was made.
The preliminary objection is upheld and appeal is dismissed and struck out.
DATEDthis 31st day of March, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocates
E.M. Orina advocate from M/S E.M. Orina & Co. advocates instructed to hold brief
for M/S R.K. Muthiga & Co. advocates for the appellant originally Defendant – present
S.B. Mbeche advocate instructed by M/S S.B. Mbeche & Co. advocates
for the Respondent originally Plaintiff - present