[2005] KEHC 2171 (KLR)
The court found that the applicant's delay in filing the appeal was due to a genuine mistake by counsel, who reasonably assumed that costs had been awarded in the lower court judgment. The mistake was only discovered upon the respondent's refusal to pay costs, and this was supported by uncontroverted correspondence....
Source-derived case information.
- Citation
- [2005] KEHC 2171 (KLR)
- Parties
- Applicant: Diesel Inject & Electrical Services Ltd; Respondent: P. N. Mashru Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 39 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave to file appeal out of time granted.
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Costs Award, Judgment Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Diesel Inject & Electrical Services Ltd
Applicant
P. N. Mashru Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the lower court's judgment on costs.
- 2 Whether the delay in filing the appeal was excusable.
Ratio Decidendi
The court found that the applicant's delay in filing the appeal was due to a genuine mistake by counsel, who reasonably assumed that costs had been awarded in the lower court judgment. The mistake was only discovered upon the respondent's refusal to pay costs, and this was supported by uncontroverted correspondence. The delay of three months was not considered inordinate, and there was no evidence to suggest bad faith or deliberate inaction. In the absence of a replying affidavit from the respondent, the applicant's explanation stood unchallenged. The court exercised its discretion to allow the application for leave to file the appeal out of time, finding it a proper case for such relief.
Court Disposition
Application allowed. Leave to file appeal out of time granted.
Orders
- The application dated 12th January, 2005 is allowed.
- Leave is granted to the applicant to file appeal out of time.
Full Case Text
Judgment text and source record
4 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBIMISCELLANEOUS APPLICATION NO 39 OF 2005DIESEL INJECT & ELECTRICAL SERVICES LTD …. APPLICANTVERSUSP. N. MASHRU LIMITED ……………………...………. RESPONDENTRULING
This is an application under Section 79 G of the Civil Procedure Act for leave to file appeal out of time. The Judgment was delivered on 12th October, 2004 in the lower court, and this application was filed on 13th January, 2005, exactly three months after delivery of Judgment. The Applicant wants to file this appeal against part of the Judgment of the lower court, relating to costs which the lower court failed to award to the Applicant following his successful suit in that Court. His reason for delay in filing appeal is that the advocate who held his Counsel’s brief when Judgment was delivered assumed that costs were awarded when Judgment was entered in favour of the Applicant. It wasn’t until much later, when the Respondent refused to pay these costs that Counsel realized that the costs had indeed not been awarded. All this is recorded in the exchange of correspondence between the Counsels, annexed to the Applicant’s affidavit. It appears like a genuine mistake, and in any event there is no Replying Affidavit to controvert any of these facts. The delay is not inordinate, and I believe this is a proper case to exercise my discretion to grant leave to file appeal out of time.
I, therefore, allow the application dated 12th January, 2005. Costs shall be in cause.Dated and delivered at Nairobi this 27th day of April, 2005. ALNASHIR VISRAM JUDGE