[2019] KEHC 707 (KLR)
The court found that the judgment of the lower court was delivered on 13.9.2019 and the statutory 30-day period for filing an appeal lapsed on 14.10.2019. The appellant filed the memorandum of appeal on 17.10.2019, three days out of time, and did not seek leave of court to file the appeal out of time. Section 79G of...
Source-derived case information.
- Citation
- [2019] KEHC 707 (KLR)
- Parties
- Appellant: Kenya Wildlife Service; Respondent: George Otieno Onjuru (Suing as the legal Representative of the Estate of Bramwels Otieno, Deceased)
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 44 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Time Barred Appeal
- Outcome
- appeal struck out as incompetent
- Judges
- RE Aburili
- Legal Topics
- Appeal Out of Time, Jurisdiction, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Wildlife Service
Appellant
George Otieno Onjuru (Suing as the legal Representative of the Estate of Bramwels Otieno, Deceased)
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Time Barred Appeal
Legal Issues
- 1 Whether the appeal was filed within the statutory period prescribed by law.
- 2 Whether the court has jurisdiction to entertain an appeal filed out of time without leave.
Ratio Decidendi
The court found that the judgment of the lower court was delivered on 13.9.2019 and the statutory 30-day period for filing an appeal lapsed on 14.10.2019. The appellant filed the memorandum of appeal on 17.10.2019, three days out of time, and did not seek leave of court to file the appeal out of time. Section 79G of the Civil Procedure Act is explicit that appeals must be filed within 30 days unless leave is granted. The failure to comply with this mandatory requirement deprived the court of jurisdiction to entertain the appeal. Consequently, the appeal was fatally incompetent and could not be admitted for hearing.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is hereby struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CIVIL APPEAL 44 OF 2019
KENYA WILDLIFE SERVICE ……………………….……… ...APPELLANT
VERSUS
GEORGE OTIENO ONJURU
(Suing as the legal Representative
Of the Estate of BRAMWELS OTIENO
(DECEASED) …………………. ………………………..…….. RESPONDENT
(Being an appeal from the Judgment and decree of Bondo PMCC No. 80 of 2017 dated 21. 11. 2019 before Hon. E.N. WASIKE – S.R.M.)
RULING
1. The decree and judgment of the lower court was made on 13. 9.2019. An Appeal to the High Court from judgment of the lower court lies within 30 days of the date of such judgment. This is the stipulation of Section 79 G of the Civil ProcedureAct. In this Appeal, Memorandum dated 15. 10. 2019 was filed on 17. 10. 2019. 30 days from 13. 9.2019 ended or lapsed on 14. 10. 2019. Accordingly, this appeal was filed out of time without leave of court.
2. The appeal is fatally incompetent and cannot be admitted to hearing as this court is devoid of jurisdiction to entertain a stale appeal.
3. The appeal is hereby struck out with no orders as to costs.
4. Orders accordingly.
Dated, Signed and Delivered at Siaya this 5th Day of December 2019
R.E. ABURILI
JUDGE