[2014] KEHC 8089 (KLR)
The court found that the applicant failed to provide a good and sufficient cause for the delay in filing the appeal. The applicant's counsel was aware of the scheduled date for judgment delivery, and the explanation of being misinformed was not credible. Furthermore, after being notified of the judgment by the...
Source-derived case information.
- Citation
- [2014] KEHC 8089 (KLR)
- Parties
- Applicant: Kenya Builders & Concrete Co Ltd; Respondent: Sanjiva Vidoro Musulwa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 361 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Judges
- DW Mbuteti
- Legal Topics
- Extension of Time, Appeal Out of Time, Delay in Filing, Judgment Delivery, Sufficient Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Builders & Concrete Co Ltd
Applicant
Sanjiva Vidoro Musulwa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to 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 in the circumstances.
Ratio Decidendi
The court found that the applicant failed to provide a good and sufficient cause for the delay in filing the appeal. The applicant's counsel was aware of the scheduled date for judgment delivery, and the explanation of being misinformed was not credible. Furthermore, after being notified of the judgment by the respondent's counsel on 17th February 2014, the applicant still delayed for about one and a half months before filing the application for leave. The court concluded that the reasons advanced for the delay were neither candid nor satisfactory, and thus, the application for leave to file an appeal out of time lacked merit.
Court Disposition
application dismissed with costs
Orders
- The application for leave to file appeal out of time is dismissed with costs to the respondent.
- Any interim stay of execution is vacated.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MISC APPLICATION NO 361 OF 2014
KENYA BUILDERS & CONCRETE CO LTD...........APPLICANT
VERSUS
SANJIVA VIDORO MUSULWA.….…….………..RESPONDENT
R U L I N G
1. It is common ground that the Applicant herein was late by 30 days in filing appeal against the decree of the lower court passed on 6th February 2014. The present application for leave to file appeal out of time (notice of motion dated 4. 4.2014) was filed on 7. 4.2014.
2. It also appears common ground that the judgment was delivered on the date reserved by the court with notice to both parties.
3. The explanation offered for the delay in the supporting affidavit sworn by the Applicant’s learned advocate, Joyce Kagai, is -
(i) That she was not present at delivery of judgment on 6th February 2014 because she “was misinformed that (the) judgment would be delivered on notice”.
She does not disclose who “misinformed” her.
(ii) That she subsequently “discovered” through a letter by the Respondent’s counsels that judgment was entered on 6th February 2014.
This letter is annexed to the affidavit, and it is dated 17th and received on 19th February 2014. As already seen the present application was field on 7th April 2014, about 1 ½ months later.
(iii) That she subsequently perused the court file and applied for a certified copy of the judgment “to ascertain the exact position” on liability.
It is apparent that she had not yet received the copy of the judgment but was still able to draft a memorandum of appeal.
4. The Respondent has opposed the application by replying affidavit filed on 23rd April 2014. It is sworn by his advocate, Peter Mwaura Kamau. The main point taken is that the judgment was delivered as scheduled with notice to the parties, and the Applicant should not now seek to benefit from its counsel’s failure to attend court at delivery of judgment.
5. I have considered the submissions of the learned counsels appearing. No authorities were cited.
6. The Applicant’s learned counsel has been less than candid in her supporting affidavit. It turns out that judgment was delivered as scheduled on the date given by the court in the presence of both counsels at conclusion of the hearing. I cannot fathom why the learned counsel has embarked on a tall story about being misinformed about the date of delivery of judgement.
7. Furthermore, the Applicant’s counsels were informed by letter dated 17th February 2014 about the judgment. Yet it was not until 7th April 2014 when the present application was made. No good and candid reason for the 30-day delay has been offered.
8. I find no good and sufficient cause for the Applicant’s failure to file its appeal in time. The application for leave has no merit. It is hereby dismissed with costs. Any interim stay of execution is hereby vacated. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 6th DAY OF JUNE 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 11TH DAY OF JUNE 2014