[2007] KEHC 1132 (KLR)
The court held that the appeal was filed outside the statutory thirty-day period prescribed for appeals from subordinate courts to the High Court. The appellant did not seek or obtain leave of the court to file the appeal out of time, and the purported consent between the parties could not override the mandatory...
Source-derived case information.
- Citation
- [2007] KEHC 1132 (KLR)
- Parties
- Appellant: Delamere Estates Limited; Respondent: Boniface Kariuki Macharia
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 229 of 2004
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal struck out as incompetent
- Judges
- LK Kimaru
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Workplace Injury, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Delamere Estates Limited
Appellant
Boniface Kariuki Macharia
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal was filed within the statutory time limit prescribed by law.
- 2 Whether parties can by consent extend the time for filing an appeal beyond statutory limits without leave of court.
- 3 Whether the appeal is competent in the absence of leave to file out of time.
Ratio Decidendi
The court held that the appeal was filed outside the statutory thirty-day period prescribed for appeals from subordinate courts to the High Court. The appellant did not seek or obtain leave of the court to file the appeal out of time, and the purported consent between the parties could not override the mandatory statutory requirements. The court emphasized that only the court has the jurisdiction to extend time for filing an appeal, and parties cannot by agreement circumvent this requirement. Consequently, the appeal was found to be incompetent and was struck out with costs to the respondent. The appellant was, however, granted liberty to file an appropriate application for leave to...
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out with costs to the respondent.
- The appellant is at liberty to file an appropriate application for leave to appeal out of time.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAKURU
CIVIL APPEAL 229 OF 2004
DELAMERE ESTATES LIMITED………………APPELLANT
VERSUS
BONIFACE KARIUKI MACHARIA…………..RESPONDENT
JUDGMENT
The respondent, Boniface Kariuki Macharia filed suit against the appellant, Delamere` Estates Ltd seeking to be paid damages on account of the injuries that he alleged to have sustained on the 31st of March, 2001 in the course of his employment. The respondent averred that he was injured due to the negligence of the appellant who failed to provide him with a safe working environment and therefore unnecessarily exposed him to risk of injury. The appellant denied the plaintiff’s averments in his plaint that he was injured due to the negligence of the appellant.
The appellant averred that the respondent was injured due to his own negligence in that he failed to perform his duties with due care and attention. After hearing the case, the trial Magistrate found the appellant 100% liable for the injuries that the respondent had sustained. The trial court awarded the respondent Kshs.400,000/=, general damages and Kshs.2000/= special damages. The judgment was delivered on the 29th June, 2004.
The appellant was aggrieved by the decision of the trial Magistrate and appealed to this court. The appeal was filed on the 2nd September, 2004. Mr. Juma for the respondent submitted that the appeal herein was incompetent as it was filed out of time without the leave of this court being sought. On his part, Mr. Mongeri submitted that the appellant had filed the appeal pursuant to a consent order that was entered between the parties that the appeal ought to be filed within twenty one (21) days as from the 18th of August, 2004.
I have considered the rival arguments made by the parties to this appeal on this point. Section 79(G) of the Civil Procedure Act provides that:
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order; provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
In the present appeal, it is clear that that the appellant filed the appeal more than thirty (30) days after the time which he ought to have filed the appeal had expired. The appellant did not seek leave of this court to file appeal out of time. The excuse given by the appellant for filing the appeal out of time cannot stand. Parties to a suit cannot by consent agree to circumvent the established procedure of the court that grants this court exclusive jurisdiction to extend time by which an appellant can appeal out of time. From the aforegoing, it is evident that the appeal herein is incompetent. It was filed out of time without the leave of this court. The appeal is consequently struck out with costs to the respondent.
The appellant shall be at liberty to file an appropriate application for leave to appeal out of time.
DATED at NAKURU this 18th day of October, 2007.
L. KIMARU
JUDGE