[2017] KEHC 4016 (KLR)
The court found that the applicant was not notified of the delivery of the lower court judgment, as evidenced by the absence of both parties at the time of delivery and the court's own record that judgment would be delivered on notice. This lack of notice constituted sufficient reason to grant leave to file an...
Source-derived case information.
- Citation
- [2017] KEHC 4016 (KLR)
- Parties
- Applicant: John Otieno Owour; Respondent: Barclays Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 607 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Leave to Appeal Out of Time, Notice of Judgment, Extension of Time, Service of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Otieno Owour
Applicant
Barclays Bank of Kenya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time due to lack of notice of judgment.
- 2 Whether absence of both parties at the delivery of judgment justifies extension of time.
Ratio Decidendi
The court found that the applicant was not notified of the delivery of the lower court judgment, as evidenced by the absence of both parties at the time of delivery and the court's own record that judgment would be delivered on notice. This lack of notice constituted sufficient reason to grant leave to file an appeal out of time. The court emphasized that the right to appeal should not be defeated by procedural lapses not attributable to the applicant, especially where there is no evidence of prejudice to the respondent.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file the appeal out of time.
- The memorandum of appeal shall be filed within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS (CIVIL DIVISION)
MISC APPLICATION NO. 607 OF 2016
JOHN OTIENO OWOUR …..….….. PLAINTIFF
VERSUS
BARCLAYS BANK OF KENYA …. DEFENDANT
RULING
This is an application by way of Notice of Motion seeking leave to file appeal out of time from the judgment of the lower court. The judgment of the lower court was rendered on 26th May, 2016. There was no notice of the judgment and it took several months for the applicant to know that the said judgment had been delivered. It is significant that the handwritten judgment of the lower court, which is annexed to the application, also shows that both parties were absent when it was delivered. That alone gives credence to the applicant’s averment that no notice was given after the court stated that it would be delivered on notice.
I must comment that this is an application which should have been compromised because it is clear there was no notice to the parties for the delivery of the judgment. That being the case, this application is allowed and leave granted to file the appeal. The memorandum of appeal shall be filed within 14 days from today. Costs shall be on appeal.
Dated, signed and delivered at Nairobi this 26h Day of July, 2017.
A. MBOGHOLI MSAGHA
JUDGE