[2013] KEHC 1152 (KLR)
The court found that delays in obtaining typed proceedings from the lower court are a recognized challenge and that the respondent had demonstrated efforts to secure the proceedings. The court exercised discretion not to strike out the notice of appeal, instead imposing a condition that the balance of the decretal...
Source-derived case information.
- Citation
- [2013] KEHC 1152 (KLR)
- Parties
- Appellant: Francis Maina Kahuria; Respondent: Livingstone K. Kinyanjui
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 131 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Notice of Appeal
- Outcome
- Conditional extension of time to file appeal; application to strike out notice of appeal dismissed.
- Judges
- MJA Emukule
- Legal Topics
- Appeal Out of Time, Leave of Court, Stay of Execution, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Maina Kahuria
Appellant
Livingstone K. Kinyanjui
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the appeal was filed out of time and without leave of court.
- 2 Whether the notice of appeal should be struck out for delay in filing the appeal.
- 3 Whether the appellant/respondent should be allowed more time to file the appeal subject to conditions.
Ratio Decidendi
The court found that delays in obtaining typed proceedings from the lower court are a recognized challenge and that the respondent had demonstrated efforts to secure the proceedings. The court exercised discretion not to strike out the notice of appeal, instead imposing a condition that the balance of the decretal sum be deposited in court and granting a further 120 days for the filing of the appeal. Failure to comply with these conditions would result in the notice of appeal being struck out. The court balanced the interests of justice and the right to appeal with the need for compliance with procedural timelines.
Court Disposition
Conditional extension of time to file appeal; application to strike out notice of appeal dismissed.
Orders
- Appellant/Respondent to deposit the balance of the decretal sum of Ksh 50,000 into court.
- Appellant/Respondent or his advocate to file the appeal within 120 days; in default, the notice of appeal will stand struck out.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL NO. 131 OF 2012
(An appeal from the Judgment of the Principal Magistrate's Court at Molo (Mr. Soita, P.M.) dated 8th May, 2012 in CMCC No. 316 of 2010)
FRANCIS MAINA KAHURIA.................................................................APPELLANT
VERSUS
LIVINGSTONE K. KINYANJUI...........................................................RESPONDENT
RULING
In his Notice of Motion dated 26th March 2013 and filed on 27th March 2013 the Respondent sought orders to strike out the Appellant's Notice of Appeal dated 23rd July 2012 and filed on 24th July 2012 on the grounds inter alia that the appeal was filed out of time and without leave of court.
The Application was opposed by the Respondent who has deponed in his Replying Affidavit sworn on 21st May 2013 and filed on 23rd May 2013 that he has done all he could to secure the proceedings from Molo Law Courts, but has not got them yet. He attached to his Affidavit copies of correspondence addressed to Molo Law Courts. The Respondent also depones that he is keen to prosecute his appeal and he is willing to abide by any terms this court would impose to allow him prosecute his appeal.
It is a matter which this court takes judicial notice that typing of proceedings in courts is a challenge, and hence delays in lodgment of appeals.
In this case the Respondent has applied for and was granted a stay of execution upon a deposit of Shs 50,000/= which is half of the decretal sum Ksh 100,000/=. I will therefore not strike out the notice of appeal, but direct the Appellant/Respondent to deposit the balance of the decretal sum of shs 50,000/= into court.
I further direct that his Advocate or he himself files his Appeal within the next 120 days (one hundred and twenty days) and in default his Notice of Appeal will stand struck out from the end of that period.
The costs herein will abide the appeal.
There shall be orders accordingly.
Dated, signed and delivered at Nakuru this 7th day of November, 2013
J. ANYARA EMUKULE
JUDGE