[2019] KEHC 6910 (KLR)
The court found that the applicant, represented by the same advocates throughout, had ample opportunity to file a cross appeal if aggrieved by the lower court's judgment. The delay of nearly two years in seeking leave was not sufficiently explained, and the application was filed only days before the scheduled...
Source-derived case information.
- Citation
- [2019] KEHC 6910 (KLR)
- Parties
- Appellant: Kenya Power & Lighting Company Limited; Respondent: Eric Mlongo Owino (Suing on his own behalf and as Personal Representative of the Estate of Johnstone Owino (Deceased))
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 640 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Application for Leave to File Cross Appeal
- Outcome
- application dismissed with costs to the appellant/respondent
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Leave to File Cross Appeal, Extension of Time, Exercise of Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Power & Lighting Company Limited
Appellant
Eric Mlongo Owino (Suing on his own behalf and as Personal Representative of the Estate of Johnstone Owino (Deceased))
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Leave to File Cross Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to file a cross appeal out of time.
- 2 Whether the delay in filing the application for leave to cross appeal was sufficiently explained.
- 3 Whether granting the orders sought would prejudice the parties or cause undue delay.
Ratio Decidendi
The court found that the applicant, represented by the same advocates throughout, had ample opportunity to file a cross appeal if aggrieved by the lower court's judgment. The delay of nearly two years in seeking leave was not sufficiently explained, and the application was filed only days before the scheduled hearing of the appeal. The court held that granting the orders sought would cause further delay and that the issues raised could be addressed during the hearing of the main appeal. Accordingly, the court exercised its discretion to refuse the application for leave to file a cross appeal out of time.
Court Disposition
application dismissed with costs to the appellant/respondent
Orders
- The application for leave to file a cross appeal is dismissed.
- Costs awarded to the appellant/respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 640 OF 2016
KENYA POWER & LIGHTING
COMPANY LIMITED ...............................................APPELLANT/RESPONDENT
VERSUS
ERIC MLONGO OWINO (Suing on his own behalf and as
Personal Representative of the
Estate of JOHNSTONE OWINO (DECEASED).......RESPONDENT/APPLICANT
(Being an Appeal from the Judgment of the Senior Principal Magistrate Hon. G. Mmsai (Mrs) delivered on the 23rd day of September, 2016 in CMCC NO. 1057 OF 2013 at Nairobi)
RULING
This is an application by way of Notice of Motion under Sections 63 (e), 79G, 95 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules for orders that leave be granted to the applicant for the filing of a cross appeal against the judgment of the trial court and that the draft memorandum of cross appeal be deemed as properly filed upon payment of requisite filing fees.
The grounds upon which the said orders are sought are that the applicant is dissatisfied with the decision of the lower court delivered on 23rd September, 2016 and in particular the mode of computing damages. It is the applicant’s position that no prejudice will be caused to any party by these prayers being granted.
There is a supporting affidavit sworn by the applicant herein. The application is opposed and there is a replying affidavit sworn by the advocate for the respondent.
Following the delivery of the lower court judgment, the memorandum of appeal was filed on 19th October, 2016 within the time allowed to file the same. The record of appeal was filed on 11th April, 2018 and five months thereafter, the present application was filed.
The record shows that the appeal was admitted to hearing on 21st May, 2018 followed by directions on 8th June, 2018. When directions were being given, the advocate for the applicant was present. It will be noted that it is 4 months thereafter that this application was filed.
The record also shows that a hearing date had actually been taken for 25th September, 2018 which means, the present application was filed just 8 days to the hearing date. I note from the record that the applicant was represented by the same firm of advocates right from the lower court to this court. One would expect therefore that the said advocates were fully seized of the applicant’s instructions and above all, the decision of the lower court. I say this because, if indeed the applicant was aggrieved by the judgment of the lower court, it should not have taken two years to conceive that a cross appeal was necessary in the circumstances of the case.
The record of appeal which includes the lower court judgment must have been served upon the applicant soon after the filing thereof. Due diligence should have been exercised to avoid the late filing of the application, which delay has not been sufficiently explained.
I have considered the submissions of the parties, provisions of law and the attendant circumstances in this case. The orders sought call for the discretion of a court. Having considered the material presented, I believe the orders sought should not be granted because they will cause more delay in the circumstances of this case and further, the issues raised can also be canvassed during the hearing of the appeal. Accordingly, this application is dismissed with costs to the appellant/respondent.
Orders accordingly.
Dated, signed and delivered at Nairobi this 10th Day of April, 2019.
A. MBOGHOLI MSAGHA
JUDGE