[2017] KEHC 8903 (KLR)
The court found that the applicant had satisfactorily explained the delay in filing the appeal, primarily due to lack of notice before the lower court's judgment was delivered. The right to appeal had not been extinguished by law, and the main issue on appeal concerned the quantum of damages. To balance the...
Source-derived case information.
- Citation
- [2017] KEHC 8903 (KLR)
- Parties
- Applicant: General Plastics Limited; Respondent: Dominic Mulinge Kimanthi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 397 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Leave to file appeal out of time granted with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Leave to Appeal Out of Time, Road Traffic Accident, Quantum of Damages, Security for Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
General Plastics Limited
Applicant
Dominic Mulinge Kimanthi
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 delay in filing the appeal out of time.
- 2 Whether leave to appeal out of time should be granted in light of the circumstances.
- 3 What conditions, if any, should be imposed for the grant of leave.
Ratio Decidendi
The court found that the applicant had satisfactorily explained the delay in filing the appeal, primarily due to lack of notice before the lower court's judgment was delivered. The right to appeal had not been extinguished by law, and the main issue on appeal concerned the quantum of damages. To balance the interests of both parties, the court granted leave to file the appeal out of time, subject to the applicant paying Kshs. 200,000 to the respondent and depositing the balance of the decretal sum in a joint interest-earning account within 30 days. The court exercised its discretion to impose these conditions to ensure fairness and security for the respondent while preserving the...
Court Disposition
Leave to file appeal out of time granted with conditions.
Orders
- Leave to file appeal out of time is granted.
- Applicant to pay respondent Kshs. 200,000 out of the decretal sum within 30 days.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI NAIROBI
MISC APPLICATION NO. 397 OF 2016
GENERAL PLASTICS LIMITED ………………...…APPLICANT
VERSUS
DOMINIC MULINGE KIMANTHI ……………......RESPONDENT
RULING
The applicant was the defendant in the lower court while the respondent was the plaintiff. The respondent’s claim in the lower court arose from a road traffic accident in which he blamed the applicant’s agent for negligence. After the trial however, the lower court found in favour of the respondent and awarded Kshs. 450,000/= general damages. The appeal was not filed in time and the reasons for delay have been set out in the application and the supporting affidavit.
The main reason however is that no notice was given before the judgment was delivered, and the applicant’s advocate came to know of the Judgment on receiving a letter from the advocate for the respondent. Soon after, this application was filed. The delay has therefore been explained to the satisfaction of the court. From the draft memorandum of appeal, it is contended that the respondent was also to blame for the accident and also that the award was exorbitant given the injuries sustained by the respondent.
The respondent is prepared to accept half of the decretal sum pending the hearing and determination of the appeal. On the other hand, the applicant is prepared to offer security for the due performance of the decree. This application would not have proved necessary had counsel engaged in the proposals that are clear.
Since the main complaint is on quantum, I am inclined to grant leave to file appeal out of time because this is a right that has not been extinguished by any law. Accordingly, leave to file the appeal out of time is hereby granted on condition that the applicant shall pay the respondent a sum of Kshs. 200,000/= out of the decretal sum, and the balance to be deposited in an interest earning account in the names of both advocates for the parties. The filing of the appeal, payment to the respondent and the deposit of the balance of the decretal sum, shall be complied with within 30 days from the date of this ruling. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 26 Day of April 2017.
A. MBOGHOLI MSAGHA
JUDGE