[2011] KEHC 394 (KLR)
The court found that the applicant had demonstrated sufficient cause for the delay in filing the appeal, primarily due to the time taken to obtain typed proceedings as evidenced by the certificate of delay. The court exercised its discretion under Section 79G of the Civil Procedure Act to grant leave to file the...
Source-derived case information.
- Citation
- [2011] KEHC 394 (KLR)
- Parties
- Applicant: George Morara Masita; Respondent: Texplast Industries Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 415 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application granted
- Legal Topics
- Leave to Appeal Out of Time, Service of Process, Certificate of Delay, Breach of Statutory Duty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Morara Masita
Applicant
Texplast Industries Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the subordinate court's judgment.
- 2 Whether the respondent's replying affidavit was properly filed and admissible.
- 3 Whether the delay in obtaining proceedings justified extension of time for appeal.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for the delay in filing the appeal, primarily due to the time taken to obtain typed proceedings as evidenced by the certificate of delay. The court exercised its discretion under Section 79G of the Civil Procedure Act to grant leave to file the appeal out of time. The court also noted procedural irregularities in the respondent's replying affidavit, which was filed out of time and without leave, and observed that service of the application was not strictly compliant with the rules but did not bar the grant of leave. The overriding consideration was the interest of justice and the applicant's right to appeal.
Court Disposition
application granted
Orders
- Leave to file an appeal out of time is granted.
- The appellant is to file and serve their appeal within 14 days of this ruling.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
MISC. APPLICATION NO. 415 OF 2011
GEORGE MORARA MASITA …………………..………….……... APPLICANT
VERSUS
TEXPLAST INDUSTRIES LTD ……........………………………...… RESPONDENT
(Being an appeal from the Judgment and decree of the Hon. C A Otieno Esq,
Resident Magistrate delivered on 10th December 2010 at Kikuyu)
R U L I N G
Leave to File Appeal out of Time
Application 27th September 2011
I.BACKGROUND
1. The applicant had filed a suit against his employer on 12th March 2010. He had sued for breach of statutory duty due to the unsafe working environment. The employee alleges to have sustained work related ailment.
2. His employer failed to enter appearance and file defence. Interlocutory judgment against them was entered on 26th April 2010. The matter then proceeded for formal proof as required by law. The Hon. Trial Magistrate upon hearing evidence reserved judgment for
12th November 2010, which was actually delivered on the
10th December 2010.
3. The applicant applied for typed copies of the judgment and proceedings whilst awaiting for these proceedings, the time to appeal from the subordinate court to the High Court lapsed.
4. The applicant being aggrieved with the subordinate court judgment then applied for leave to file appeal out of time.
IIAPPLICATION 27TH SEPTEMBER 2011
FOR LEAVE TO FILE APPEAL OUT OF TIME
5. The applicant served the application upon a gatekeeper who is alleged to have had instructions from the manager to receive the same. The proper procedure is to serve documents upon a director of a company, not a manager or gate keeper. The affidavit of the process server describes how he was not permitted to enter the premises. The documents were received but not signed for.
6. Whereas service was said to have been made on 4th October 2011, the respondent appears to have filed a replying affidavit to the applicant on 18th October 2011. This was on the day the matter was coming up for hearing.
7. The said affidavit was most certainly filed out of time. Three clear days were required to have been given upon the filing of the affidavit. The normal procedure would be, where respondent delays in filing their reply is to file a notice of motion seeking leave to file the replying affidavit out of time. The application should be supported by an affidavit disclosing reasons why the affidavit was so delayed and filed out of time. The proposed replying affidavit would be an annexture. The application, notice of motion would seek leave to have the replying affidavit be deemed as duly filed.
8. Once the court considers the reasons of the late service, by its discretion, the court may permit the admission of the replying affidavit.
9. In this case, service was done 14 clear days from the date of hearing.
10. I also noted that there being an interlocutory judgment entered in the subordinate courts, then the respondent was never represented at all. The replying affidavit was filed by an advocate. I do not see a notice of appointment on this file and therefore one may only conclude that the replying affidavit was filed without locus.
11. If per chance, there was locus to file the affidavit, the same was filed without leave of the court.
12. Turning to the application before court, the trial magistrate delivered her judgment on 10th December 2010. The law provides under Section 79 (g) of the Civil Procedure Act, 30 days right of appeal. This would have expired in February 2011 due to the public holidays.
13. The subordinate court provided a certificate of delay between
15th February to 28th July 2011, the period taken to type the proceedings.
14. This court was informed that the proceedings were actually sought for on 10th December 2010. There appears to be a discrepancy with the certificate of delay stating the time to be the 15th February 2011.
15. I would give the applicant the benefit of a doubt.
16. The application 27th September 2011 be and is hereby granted. Leave to file an appeal out of time is granted. The appellant is to file and serve their appeal within 14 days of this ruling.
17. There will be costs in the intended appeal.
DATED THIS 19TH DAY OF OCTOBER 2011 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
iii)N.A Owino instructed by M/s N.Owino & Co advocates for the appellant
iv)L G Thuranira instructed by Albert Kamunde & Co Advocates for the Respondent/original applicant