[2000] KEHC 97 (KLR)
The court found that although there was a delay in filing the appeal, the applicant had deposited the decretal amount and made efforts to obtain the proceedings. The delay was attributed to the previous advocates ceasing operations and difficulties in retrieving the case files. In the greater interest of justice,...
Source-derived case information.
- Citation
- [2000] KEHC 97 (KLR)
- Parties
- Applicant: Dragon Pearl Chinese Restaurant Ltd.; Respondent: John Makokha Otwisa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 102 of 1999
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed with conditions
- Legal Topics
- Leave to Appeal Out of Time, Delay in Filing Appeal, Stay of Execution, Decretal Amount Deposit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dragon Pearl Chinese Restaurant Ltd.
Applicant
John Makokha Otwisa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether leave to appeal out of time should be granted in the interests of justice.
Ratio Decidendi
The court found that although there was a delay in filing the appeal, the applicant had deposited the decretal amount and made efforts to obtain the proceedings. The delay was attributed to the previous advocates ceasing operations and difficulties in retrieving the case files. In the greater interest of justice, and considering that the decretal amount had been deposited, the court exercised its discretion to allow the application for leave to appeal out of time, subject to the applicant lodging the appeal within 21 days and paying the costs of the application.
Court Disposition
application allowed with conditions
Orders
- The applicant shall lodge the appeal within 21 days.
- Failure to lodge the appeal within 21 days will result in automatic dismissal of the application.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI MISC. CIVIL APP. NO. 102 OF 1999
(IN THE MATTER OF THE INTENDED APPEAL FROM THE JUDGMENT OF THE RESIDENT MAGISTRATE, MRS. M. MUIGAI DATED 12TH AUGUST, 1997 IN RMCC NO. 4973 OF 1995 AT MILIMANI COMMERCIAL COURTS, NAIROBI)
DRAGON PEARL CHINESE RESTAURANT LTD.…………………....APPLICANT -VERSUS
JOHN MAKOKHA OTWISA………………………………………..…RESPONDENT
RULING
In this application the applicant is asking for leave to appeal out of time against the Judgment delivered on 12. 8.1997 in RMCC No. 4973 of 1995.
In support of the application, the applicant says that the case was handled by the firm of Jeniffer Shamalla & Co. which is not functioning now. The applicant relies on the affidavits filed in support.
The application is opposed on the grounds that no reason has been given for the delay in filing the appeal.
The applicant says that following the judgment, they deposited the decretal amount and applied for the proceedings which took long to be supplied. Mr. Njenga explains that he has had difficulties getting the files from the former advocates which is no longer in operation. I note that the present advocates came into this matter after the applicant realised that the appeal had not been lodged by the former advocates and this came to their knowledge when an application seeking to set aside the Stay of Execution was made.
I appreciate what Ombete, advocate for the Respondent says about the time this appeal has taken to be filed but for the greater interest of justice and since the decretal amount had been deposited with the court, I shall allow the application. The applicant shall lodge the appeal within 21 days and failure to do the application shall stand dismissed. The applicant shall pay the costs of this application.
Dated and delivered at Nairobi this 24th day of May, 2000.
KASANGA MULWA
JUDGE