[2022] KEHC 2234 (KLR)
The court found that the applicant provided a plausible and uncontested explanation for the delay in filing the notice of appeal, namely that the ruling was delivered without notice to the parties and only came to the applicant's attention after the time for appeal had lapsed. The respondent did not contest the...
Source-derived case information.
- Citation
- [2022] KEHC 2234 (KLR)
- Parties
- Applicant: Ecobank Kenya Limited; Respondent: Sadizue Enteprises Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E020 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Notice of Appeal Out of Time
- Outcome
- application allowed
- Judges
- JK Sergon
- Legal Topics
- Extension of Time, Notice of Appeal, Auctioneer Costs, Board Rulings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ecobank Kenya Limited
Applicant
Sadizue Enteprises Auctioneers
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Notice of Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file a notice of appeal out of time.
- 2 Whether the delay in filing the notice of appeal was sufficiently explained.
Ratio Decidendi
The court found that the applicant provided a plausible and uncontested explanation for the delay in filing the notice of appeal, namely that the ruling was delivered without notice to the parties and only came to the applicant's attention after the time for appeal had lapsed. The respondent did not contest the application or provide any contrary evidence. The court exercised its discretion to grant the applicant leave to file and serve the notice of appeal out of time, finding the application meritorious.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file and serve a notice of appeal out of time within 14 days.
- Costs of the application to abide the outcome of the intended appeal.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC. APPLICATION NO. E020 OF 2022
ECOBANK KENYA LIMITED.........................................................................APPLICANT
-VERSUS-
SADIZUE ENTEPRISES AUCTIONEERS..................................................RESPONDENT
RULING
1) Ecobank (K) Ltd, the applicant herein took out the chamber summons dated 19th January 2022 whereof it sought for the following orders:
i. Leave be granted to the applicant to lodge its notice of appeal out of time.
ii. The applicant annexed a proposed notice of appeal be deemed to have been properly filed and served on the date of this honourable court’s ruling on this application.
iii. This honourable court be pleased to grant any other or further order that it deems fit and adjust to grant.
iv. Costs of this application be in the appeal.
2) The applicant filed the affidavit sworn by Sammy Miringu in support of the summons. The applicant was permitted to prosecute the application exparte when the respondent failed to respond to the summons and when it also failed to attend the interpartes hearing.
3) I have considered the grounds set out on the face of the summons and the facts deponed in the supporting affidavit. It is the submission of the applicant that the respondent’s bill of costs was heard by the Auctioneering Licensing Board hereinafter referred to as the ‘Board’. It is stated that on 30th July 2021, the Board delivered its ruling in which the Board awarded the respondent costs assessed at ksh.17,400/=.
4) It is the averment of the applicant that the Board delivered its ruling in the absence of the parties and without notice. It is he submission of the applicant that it only became aware of the delivery of the Board’s ruling when it received a demand notice from the respondent demanding the release of costs awarded by the Board.
5) It is said that the applicant learnt of the Board’s ruling after the lapse of the time required to file a notice of appeal. The applicant’s averment have not been controverted.
6) After a careful consideration of the applicant’s arguments, I find the reason(s) advanced to explain the delay to be plausible and uncontested. Consequently, I find the summons dated 19/1/2022 to be meritorious. The applicant is granted leave of 14 days to file and serve a notice of appeal out of time. Costs of the summons to abide the outcome of the intended appeal.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 18TH DAY OF FEBRUARY, 2022.
........................
J. K. SERGON
JUDGE
In the presence of:
....................................for the Applicant
.................................for the Respondent