[2017] KEHC 8896 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for not filing the appeal within the ten days granted by the earlier order, as the medical evidence of counsel's illness post-dated the expiry of the original period. However, in the interests of justice and without undue regard to...
Source-derived case information.
- Citation
- [2017] KEHC 8896 (KLR)
- Parties
- Applicant: Casement Fabrication Works Limited; Respondent: Agri Handwares (E.A) Limited; Respondent: David Kamau; Respondent: Gladys Njeri; Respondent: Casement Industries Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 361 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Extend Time for Filing Appeal
- Outcome
- application allowed with conditions
- Judges
- BT Jaden
- Legal Topics
- Extension of Time, Leave to Appeal Out of Time, Stay of Execution, Procedural Default
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Casement Fabrication Works Limited
Applicant
Agri Handwares (E.A) Limited
Respondent
David Kamau
Respondent
Gladys Njeri
Respondent
Casement Industries Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Extend Time for Filing Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for extension of time to file an appeal out of time.
- 2 Whether the court should exercise discretion to extend time despite non-compliance with previous orders.
- 3 Whether the applicant's counsel's illness constitutes a valid reason for delay.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for not filing the appeal within the ten days granted by the earlier order, as the medical evidence of counsel's illness post-dated the expiry of the original period. However, in the interests of justice and without undue regard to procedural technicalities, the court exercised its discretion to allow the extension of time, subject to the applicant depositing security of Ksh.300,000 for due performance of the decree. The court balanced the need for finality and compliance with procedure against the right to be heard on appeal, imposing conditions to safeguard the respondent's interests.
Court Disposition
application allowed with conditions
Orders
- The applicant shall deposit security in the sum of Ksh.300,000 in a joint interest earning bank account of the counsels or in court within 30 days.
- In default of deposit, execution to proceed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL MISC. APPLICATION NO. 361 OF 2015
CASEMENT FABRICATION WORKS LIMITED...........................APPLICANT
VERSUS
AGRI HANDWARES (E.A) LIMITED..................................1ST RESPONDENT
DAVID KAMAU
GLADYS NJERI
CASEMENT INDUSTRIES LIMITED...................................2ND RESPONDENT
RULING
1. The Notice of Motion dated 26th September, 2016 seeks orders that:-
1. THAT leave granted to the Applicant to file an appeal out of time on 11th March 2016 and consequential orders be extended.
2. The background to the application under consideration is an application dated 21st August 2015 which sought, inter-alia orders for leave to file appeal out of time and stay of execution pending the hearing of the intended appeal. The said application was allowed on 11th March 2016 on condition that the appeal be filed within ten (10) days. The appeal was not filed within the ten days, hence the instant application. The reason given for the failure to file the appeal within the timelines given by the court is that the Applicant’s counsel who is a sole practitioner fell sick and was hospitalized.
3. The application is opposed. The 1st Respondent filed the grounds of opposition dated 25th October 2016. The said grounds are as follows:-
1. THAT the application though filed on 26th September 2016 and scheduled for inter parties hearing for 27th October 2016, the same was only served on 24th October 2016 indicative of the Applicant’s utter contempt of the law and practice.
2. THAT the Applicant was on 11th March 2016 given ten (10) days to file its appeal instead it makes application for leave, six (6) months later, again indicative of its indolence and reckless negligence.
3. THAT leave having been given, cannot be re-issued, the application beingres judicata.
4. THAT the application doesn’t establish legal or factual basis for the orders sought.
5. THAT the alleged indisposition of the Applicant’s lawyer is not discharged, the attachment being scanty and suspect.
6. THAT the Applicant and its Lawyers are abusing the court process to defeat the judgment that issued to the 1st Respondent on 12th April 2013.
7. THAT the application violates Article 159(2) (b) of the Constitution and Section 1A and 1B The Civil Procedure Act, Cap. 21.
8. THAT the application is for dismissal.
4. The 2nd Respondent did not oppose the application.
5. The application was canvassed by way of written submissions which I have considered.
6. The ruling which gave the Applicant ten (10) days within which to file the appeal out of time was delivered on 11th March 2016. The medical documents exhibited in support of the assertion that the Applicant’s counsel was indisposed are dated 12th April 2016 and 26th April 2016. By the time the Applicant’s counsel was seen by the doctor as per the said documents, a period of more than 30 days had lapsed. There is therefore no explanation given why the appeal was not filed within ten (10) days as for the court’s orders.
7. A perusal of the file herein reflects that the Applicant’s intended appeal is in respect of his objection to the attachment by auctioneers of motor vehicle registration No. KBQ 230 H which the Applicant claims belongs to him and not to the Judgment Debtor. The proclamation of attachment reflects the value of the said motor vehicle as Ksh.350,000/=. Without undue regard to technicalities of procedure, this court is inclined to allow the application on condition that the Applicant do deposit security in the sum of Ksh.300,000/= for the due performance of the decree. The said amount to be deposited in a joint interest earning bank account of the counsel’s herein or in court within 30 days, in default execution to proceed. In the meantime the Applicant to file the appeal within 14 days from the date hereof. Orders accordingly. Costs in cause.
Date, signed and delivered at Nairobi this 15th day of June, 2017
B. THURANIRA JADEN
JUDGE