[2005] KEHC 2540 (KLR)
The court found that the applicant failed to demonstrate good and sufficient cause for not filing the appeal within the prescribed time. The applicant's advocates received instructions to appeal with nine days remaining before the expiry of the appeal period but did not act promptly. The court held that the...
Source-derived case information.
- Citation
- [2005] KEHC 2540 (KLR)
- Parties
- Applicant: Kenindia Assurance Co. Ltd; Respondent: Charles Ngunjiri Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 417 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application dismissed
- Judges
- ARM Visram
- Legal Topics
- Extension of Time, Leave to Appeal, Stay of Execution, Appeals From Subordinate Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenindia Assurance Co. Ltd
Applicant
Charles Ngunjiri Kariuki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated good and sufficient cause for failing to file the appeal within the prescribed time.
- 2 Whether leave to file an appeal out of time should be granted under Section 79G of the Civil Procedure Act.
Ratio Decidendi
The court found that the applicant failed to demonstrate good and sufficient cause for not filing the appeal within the prescribed time. The applicant's advocates received instructions to appeal with nine days remaining before the expiry of the appeal period but did not act promptly. The court held that the applicant did not require the proceedings to file a memorandum of appeal and could have filed the memorandum within time. Furthermore, the applicant failed to obtain or annex a certificate of delay, which would have excluded the time required for preparation and delivery of the decree or order from the computation of time. The court concluded that the reasons advanced by the applicant...
Court Disposition
application dismissed
Orders
- The application dated 24th March, 2005 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI(NAIROBI LAW COURTS)
MISCELLANEOUS APPLICATION NO. 417 of 2005
KENINDIA ASSURANCE CO. LTD ………….…………. APPLICANT
VERSUS
CHARLES NGUNJIRI KARIUKI …………………….. RESPONDENT
RULING
In this application dated 23rd March, 2005, brought under Order 49, Rule 5, Order 41 Rule 4 of the Civil Procedure Rules and Sections 79 G, 95 and 3 A of the Civil Procedure Act, the Applicant seeks leave to file appeal out of time, and stay of execution. At this time, only the prayer relating to leave to file appeal out of time is before this Court. Of course, stay of execution pending appeal can only be granted once there is a valid appeal pending before this Court.
Judgment in the lower court was delivered on 10th February, 2005. The Applicant’s reason for not filing the memorandum of appeal in time, that is within 30 days of the Judgment, is that the instructions to file appeal were received by the Applicant’s advocates on 1st March, 2005, and thereafter they applied for certified copies of proceedings and judgment, which have still not been received. However, this application, together with a draft memorandum of appeal, was filed on 24th March, 2005, which is 14 days after the time to file appeal had expired.
Section 79 G of Cap 21 under which the application is made 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.” Now, the operative words, which guide the Court in the exercise of its discretion to admit an appeal out of time, are “good and sufficient cause” in the proviso to Section 79 G. So, has the applicant here demonstrated good and sufficient cause for not filing the appeal in time? Not, in my view. By 1st March, 2005, the Advocates had received the instructions to file the appeal, and they had nine full days to do so. But they waited until 22nd March, 2005 to apply for proceedings and judgment, which, incidentally, they have still not received. All they had to do was file the memorandum of appeal, and to do so, they did not need the proceedings. All they needed was a certified copy of the decree or order, which was the subject of this appeal, and then, too, this could have been filed subsequently – not necessarily with the memorandum. The fact that the Applicant has annexed the draft memorandum of appeal to this application shows that it did not need the proceedings or the decree or order for the purposes of filing the same. In any event, if the Applicant indeed needed the decree or order, and was unable to obtain the same, it ought to have obtained, and annexed, the certificate of delay issued by the Deputy Registrar in which case the time required for the preparation and delivery of the decree or order, would have been excluded in the computation of time for filing appeal. (See Section 79 G, Civil Procedure Act). This has not been done.
Accordingly, and for reasons outlined, I am unable to grant leave to file appeal out of time, and I dismiss the application dated 24th March, 2005 with costs to the Respondent.
Dated and delivered at Nairobi this 25th day of May, 2005.
ALNASHIR VISRAM
JUDGE