[2014] KEHC 1424 (KLR)
The court found that the appeal was filed outside the thirty-day period stipulated by Section 79G of the Civil Procedure Act. The appellant did not obtain leave of the court to file the appeal out of time. As a result, there was no competent appeal before the court. The court emphasized that compliance with...
Source-derived case information.
- Citation
- [2014] KEHC 1424 (KLR)
- Parties
- Appellant: Jamal Faraj; Respondent: Charles Khalambula
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 9 of 2012
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal struck out as incompetent
- Judges
- MM Kasango
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Competency of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jamal Faraj
Appellant
Charles Khalambula
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal was filed within the statutory period prescribed by Section 79G of the Civil Procedure Act.
- 2 Whether the appellant obtained leave to file the appeal out of time.
- 3 Whether the appeal is competent before the court.
Ratio Decidendi
The court found that the appeal was filed outside the thirty-day period stipulated by Section 79G of the Civil Procedure Act. The appellant did not obtain leave of the court to file the appeal out of time. As a result, there was no competent appeal before the court. The court emphasized that compliance with statutory timelines for filing appeals is mandatory unless sufficient cause is shown and leave is granted. The failure to seek and obtain such leave rendered the appeal fatally defective and incompetent.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is hereby struck out with costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 9 OF 2012
JAMAL FARAJ ………...………………………………………………….APPELLANT
-V E R S U S-
CHARLES KHALAMBULA ……..……………………….....………… RESPONDENT
(Being an appeal from the Judgment and Decree of the Mombasa Ag. Chief Magistrate Hon. L. Mutende delivered on 13th December 2012 in the CMCC No. 188 of 2009)
JUDGMENT
1. Section 79G of the Civil Procedure Act provides 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.”
2. The Judgment of Mbsa Senior Resident Magistrate’s Court Civil Case No. 188 of 2009 was delivered on 13th November 2011 and not on 13th December 2011 as erroneously stated on the Memorandum of Appeal. The date reflected in the handwritten judgment and in the extracted Decree in that case show the date of judgment was 13th November 2011.
3. Bearing that date in mind this appeal having been filed on 26th January 2012 was clearly filed out of the 30 days envisaged in Section 79G. It is on that ground alone that I find Appellant’s appeal is incompetent.
4. The appeal filed on 26th January 2012 would still be filed out of time even if the correct date of judgment was 13th December 2011 since it would also have been filed beyond the thirty (30) days required.
5. Appellant failed to obtain leave of the Court for the appeal filed to be admitted out of time before the appeal was heard by written submissions. There is therefore no competent appeal before Court. Consequently this appeal is hereby struck out with costs to the Respondent.
DATED and DELIVERED at MOMBASA this 20TH day of NOVEMBER, 2014.
MARY KASANGO
JUDGE