[2019] KEHC 1033 (KLR)
The court found that although the applicant claimed not to have been served with the judgment date, he failed to explain what steps he took after the judgment was not delivered on the scheduled date. The applicant was served with a notice of entry of judgment and did not act promptly thereafter. The court concluded...
Source-derived case information.
- Citation
- [2019] KEHC 1033 (KLR)
- Parties
- Applicant: Ernest Shiloya; Respondent: Justus Wanyama
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 200 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Extension of Time, Leave to Appeal Out of Time, Judicial Discretion, Service of Judgment, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ernest Shiloya
Applicant
Justus Wanyama
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 the appeal out of time.
Ratio Decidendi
The court found that although the applicant claimed not to have been served with the judgment date, he failed to explain what steps he took after the judgment was not delivered on the scheduled date. The applicant was served with a notice of entry of judgment and did not act promptly thereafter. The court concluded that the application for leave to appeal out of time was an afterthought and a delaying tactic, lacking merit. The applicant did not provide a satisfactory explanation for the delay, and the court exercised its discretion to dismiss the application with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for leave to appeal out of time is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
MISCELLANEOUS CIVIL APPLICATION 200 OF 2019
ERNEST SHILOYA............APPLICANT
VERSUS
JUSTUS WANYAMA..... RESPONDENT
RULING
The applicant filed this application on 13th November 2019 seeking leave to appeal out of time.
APPLICANT’S CASE
The applicant was the defendant in Eldoret CMCC 418 of 2007 wherein judgment was delivered on 19th July 2019. The applicant’s advocate on record was not served with the new judgment date since judgment had been set in court to be delivered on 16th July 2019.
The applicant was served with a notice to show cause why execution should not issue. Upon inquiry, he learned that judgment has since been delivered. He was served on 22nd October 2019. The delay to lodge the appeal was occasioned by factors beyond his control.
RESPONDENT’S CASE
The respondent filed a replying affidavit on 27th November 2019. He deponed that the applicant has not explained the steps he took after realizing that judgment was not delivered on 16th July 2019. On 4th September 2019 the 2nd defendant was served with a notice of entry of judgment and also judgment on costs vide a copy of letter dated 3rd September 2019. The same was annexed and marked JKW1.
The 2nd defendant is guilty of laches as he has brought this application after a long time and no explanation has been given for the same. The issue of filing an appeal is an afterthought.
ISSUES FOR DETERMINATION
a. Whether the applicant should be granted leave to file the appeal out of time
In Stanley Kahoro Mwangi & 2 others v Kanyamwi Trading Company Limited [2015] EKLR the court of appeal held;
“The principles guiding the court on an application for extension of time premised upon Rule 4 of the Rules are
well settled and there are several authorities on it. The principles are to the effect that the powers of the court in deciding such an application are discretionary and unfettered. It is, therefore, upon an applicant under this rule to explain to the satisfaction of the Court that he is entitled to the discretion being exercised in his favour.”
The school of thought is that the powers of the court in such a scenario are discretionary.
The applicant claims that he was not issued with a notice for the judgment date. However, the applicant has not explained what he did after the judgment was not delivered on 16th July 2019. Were there steps taken to enquire when the judgment would be delivered? He also claimed to have been served with a Notice to Show cause on 3rd October 2019 yet he had already been served with the letter notifying him of the entry of judgment on 4th September 2019 through his advocates. There were no steps taken after that save for the application presently before court which was filed a month and a half after he was aware of a notice to show cause and the judgment having been entered.
The application is an afterthought and a delaying tactic. It lacks merit and is hereby dismissed with costs to the respondent.
S. M GITHINJI
JUDGE
DATED, SIGNEDandDELIVEREDatELDORETthis 16thday of December, 2019.
In the presence of;
Mr. Juma holding brief for Miss Tum for the Applicant
Mr. Chesoni holding brief for Mr. Onyinkwa for the Respondent
Ms Abigael - Court assistant