[2018] KEHC 6063 (KLR)
The court found that the appeal was filed out of time and without leave of court, contrary to section 79G of the Civil Procedure Act. The appellant did not dispute the late filing but sought to rely on the exclusion of time for preparation and certification of proceedings. However, there was no evidence or...
Source-derived case information.
- Citation
- [2018] KEHC 6063 (KLR)
- Parties
- Appellant: Evans Manyibe Nyabero; Respondent: Michael Momanyi; Respondent: Justus Atuti
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 186 of 2015
- Procedural Posture
- Civil Appeal / Judgment on Preliminary Objection
- Outcome
- appeal struck out as incompetent
- Judges
- DAS Majanja
- Legal Topics
- Appeal Out of Time, Leave of Court, Filing Deadlines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Manyibe Nyabero
Appellant
Michael Momanyi
Respondent
Justus Atuti
Respondent
Procedural Posture
Civil Appeal / Judgment on Preliminary Objection
Legal Issues
- 1 Whether the appeal was filed within the statutory period prescribed under section 79G of the Civil Procedure Act.
- 2 Whether the court should exclude time taken to prepare and certify copies of proceedings in computing the limitation period for filing an appeal.
- 3 Whether the appeal should be struck out for being filed out of time without leave of court.
Ratio Decidendi
The court found that the appeal was filed out of time and without leave of court, contrary to section 79G of the Civil Procedure Act. The appellant did not dispute the late filing but sought to rely on the exclusion of time for preparation and certification of proceedings. However, there was no evidence or application for such exclusion or for leave to file out of time. The statutory requirements under section 79G are mandatory, and in the absence of compliance or leave, the appeal was incompetent. Consequently, the court struck out the appeal with costs to the respondents.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out for being filed out of time without leave.
- Costs assessed at Kshs. 5000 awarded to the respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. 186 OF 2015
CORAM: D.S. MAJANJA J.
BETWEEN
EVANS MANYIBE NYABERO...............................APPELLANT
AND
MICHAEL MOMANYI.................................1ST RESPONDENT
JUSTUS ATUTI..............................................2ND RESPONDENT
(Being an appeal from the Judgment and Decree of Hon.M. Nyagah, RM dated 10th September 2015 at the Chief Magistrates Court at Kisii in Civil Case No.82 of 2014)
JUDGMENT
1. At the hearing of this appeal, counsel for the respondents raised an objection on the ground that the appeal was filed out of time and without leave and that it ought to be struck out. He pointed out that the judgment was delivered on 10th September 2015 and that the Memorandum of Appeal was filed on 24th December 2015, a period of 3 months and 14 days outside the time permitted for filing appeal under section 75G of the Civil Procedure Act (Chapter 21 of the Laws of Kenya).
2. Counsel for the appellant did not dispute the fact that the appeal was filed out of time. He contended that under the section 79G aforesaid, the court should exclude from the time taken to appeal such time as was necessary to prepare the and certify copies of the proceedings.
3. There is no dispute that the appeal herein was filed out of time and without leave contrary to section 79G of the Civil Procedure Act. That being the position, the only order that commends itself to this court is that the appeal be and is hereby struck out with costs to the respondents which I assess at Kshs. 5000/- only.
DATED and DELIVERED at KISII this 26th day of June 2018.
D.S. MAJANJA
JUDGE
Mr Soire instructed by Soire and Company Advocates for the appellant.
Mr Gichana instructed by Ochoki and Company Advocates for the respondents