[2006] KEHC 1146 (KLR)
The court found that the appeal was filed four days after the expiry of the statutory thirty-day period prescribed by Section 79 G of the Civil Procedure Act. No leave of court was sought or obtained to file the appeal out of time, nor was any explanation or justification provided for the delay. The statutory...
Source-derived case information.
- Citation
- [2006] KEHC 1146 (KLR)
- Parties
- Appellant: Harrison Kayeri Kibidi; Respondent: James Kamaru; Respondent: Stephen Gatimu; Respondent: International Foreign Trade and Company; Respondent: Kanmoth Kadhakrishnah
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 1017 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- appeal struck out as incompetent for being filed out of time without leave
- Judges
- ARM Visram
- Legal Topics
- Appeal Out of Time, Striking Out Appeal, Leave of Court, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harrison Kayeri Kibidi
Appellant
James Kamaru
Respondent
Stephen Gatimu
Respondent
International Foreign Trade and Company
Respondent
Kanmoth Kadhakrishnah
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal was filed within the statutory time limit prescribed by Section 79 G of the Civil Procedure Act.
- 2 Whether leave of court was obtained to file the appeal out of time.
- 3 Whether the appeal should be struck out for being filed out of time without leave.
Ratio Decidendi
The court found that the appeal was filed four days after the expiry of the statutory thirty-day period prescribed by Section 79 G of the Civil Procedure Act. No leave of court was sought or obtained to file the appeal out of time, nor was any explanation or justification provided for the delay. The statutory requirement for timely filing is mandatory, and failure to comply without leave renders the appeal incompetent. Consequently, the court struck out the appeal with costs to the respondent.
Court Disposition
appeal struck out as incompetent for being filed out of time without leave
Orders
- The appeal is struck out.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS Civil Appeal 1017 of 2004
HARRISON KAYERI KIBIDI ……………......................................................……………… APPELLANT
VERSUS
JAMES KAMARU ……………………..….................................................………… 1ST RESPONDENT
STEPHEN GATIMU …………….................................................………………….. 2ND RESPONDENT
INTERNATIONAL FOREIGN TRADE AND COMPANY …………...………….. 3RD RESPONDENT
KANMOTH KADHAKRISHNAH ……….................................................……...…. 4TH RESPONDENT
(An Appeal from the Judgment of Hon. Mr. Kaikai, RM in
Nairobi CMCC No. 10326 consolidated with 10327 of 2004
delivered on 26th October, 2004).
RULING
This is an application for striking out of the appeal under Section 79 G of the Civil Procedure Act on the ground that it was filed out of time, without leave of the Court.
Indeed, it is not in dispute that the Judgment in the lower court was handed down on 26th October, 2004, and the Memorandum of Appeal was filed on 29th November, 2004, four days after the date prescribed in Section 79 G of the Civil Procedure Act. That section states as follows:
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the Appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
There is no doubt that this appeal was filed out of the time prescribed in the above section without leave of this court, and, is, accordingly struck out with costs to the Respondent.
Dated and delivered at Nairobi this 25th day of October, 2006.
ALNASHIR VISRAM
JUDGE