[2021] KEHC 8571 (KLR)
The court found that the delay in filing the Notice of Appeal was minimal and was occasioned by the court's failure to notify the parties of the judgment delivery. The plaintiff's advocates acted promptly upon receiving notice and sought instructions from their client. The delay of two days was not inordinate, and...
Source-derived case information.
- Citation
- [2021] KEHC 8571 (KLR)
- Parties
- Plaintiff: Canon Assurance (K) Limited; Defendant: The Orient Insurance Agencies Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 193 of 2007
- Procedural Posture
- Civil Case / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- Application allowed.
- Judges
- B Ojoo
- Legal Topics
- Extension of Time, Notice of Appeal, Appellate Jurisdiction, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Canon Assurance (K) Limited
Plaintiff
The Orient Insurance Agencies Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the court should grant an extension of time to file a Notice of Appeal after the prescribed period has lapsed.
- 2 Whether the delay in filing the Notice of Appeal was excusable and justified.
- 3 Whether the court has jurisdiction to grant the orders sought under the cited provisions.
Ratio Decidendi
The court found that the delay in filing the Notice of Appeal was minimal and was occasioned by the court's failure to notify the parties of the judgment delivery. The plaintiff's advocates acted promptly upon receiving notice and sought instructions from their client. The delay of two days was not inordinate, and there was no prejudice to the defendant, who did not oppose the application. The court exercised its discretion under the correct legal provision (section 7 of the Appellate Jurisdiction Act) and allowed the application for extension of time to file the Notice of Appeal.
Court Disposition
Application allowed.
Orders
- The plaintiff is to file the Notice of Appeal within 14 days of the date of this ruling.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
CIVIL CASE NO. 193 OF 2007
CANON ASSURANCE (K) LIMITED...........................................PLAINTIFF
VERSUS
THE ORIENT INSURANCE AGENCIES LIMITED...............DEFENDANT
R U L I N G
1. By a Motion on Notice dated 16/7/2020 brought under sections 1A, 1B and 3A of the Civil Procedure Act and Orders 50 Rule 6 and 51 Rules 4 and 10 of the Civil Procedure Rules, the plaintiff has sought that there be extension of time for the filing of a Notice of Appeal against the judgment made herein on 30/6/2020.
2. The grounds upon which the application was predicated upon were set out in the body of the Motion and the supporting affidavit of Elizabeth Ngondesworn on 16/7/2020.
3. These grounds were that; the impugned judgment was delivered without notice to the parties, that she only became aware that judgment had been delivered after the court notified her via email on 6/7/2020. That the plaintiff was dissatisfied with the judgment and needed to appeal against the same.
4. That she encountered challenges when attempting to lodge the Notice of Appeal after she was notified of the judgment. She further deposed that the intended appeal is arguable and that the application had been brought timeously and in good faith.
5. Although the defendant was served with the application, it never filed any pleading in response thereto. The application was therefore unopposed. I have considered the record and the deposition by Elizabeth Ngonde.
6. Although the application was not opposed, the plaintiff must satisfy the Court that it is deserving the exercise of the discretion of the Court. I note that the plaintiff failed to properly invoke the jurisdiction of this Court to extend time for the filing of a Notice of Appeal to the Court of Appeal. The provisions of the law cited do not confer this Court with any jurisdiction to grant the order sought.
7. Be that as it may, this Court will overlook that oversight and nevertheless determine the matter on merit. Since the Court knows that the said jurisdiction exists under section 7 of the Appellate Jurisdiction Act, Cap 9 of the Laws of Kenya,the Court will proceed to exercise that jurisdiction.
8. The principles applicable are, the length of the delay, if any, the reason for the delay and the prejudice to be suffered by the opposite party. On the first principle, the judgment is said to have been delivered without notice to the parties. That may have been an oversight on the part of the Court as Order 22 of the Civil Procedure Rulesrequire that if a judgment or ruling is not delivered at once, notice of such delivery should be given to the parties.
9. In the present case, since that deposition was not denied, it gives the plaintiff the right in limine to apply for the extension. The judgment was delivered on 30/6/2020. The plaintiff’s advocates were notified of the same on 6/7/2020. There was 8 more days to lodge the Notice of Appeal. The said advocates had to notify their client and take instructions thereon. The present application was filed on 16/7/2020. The last day to file the appeal was 14/7/2020. The present application was lodged on 16/7/2020, barely two days out of time. The delay was not inordinate.
10. As for the reason for the delay, I have already made a finding that the error was on the part of the Court for having delivered the judgment without notice to the parties. Further, I have found that the plaintiff’s advocates were entitled to seek instructions from their client once they were notified of the judgment. The reason for the delay in this regard was genuine.
11. As regards the prejudice, if any, to be suffered by the defendant, I see none. A party has a right to pursue his right to the highest court in the land, if reasonable to do so. In any event, the defendant was not opposed to the application.
12. In this regard, I find that the application has merit and I allow the same as prayed. The plaintiff is to file the Notice of Appeal within 14 days of the date of this ruling.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF MARCH, 2021.
A. MABEYA, FCI Arb
JUDGE