[2004] KEHC 152 (KLR)
The court found that the applicants did not require copies of proceedings to lodge their appeal and could have filed the Memorandum of Appeal with a certified copy of the decree or order, which could be filed subsequently. The applicants failed to demonstrate how the missing lower court file or their status as...
Source-derived case information.
- Citation
- [2004] KEHC 152 (KLR)
- Parties
- Applicant: Kikuyu Township Jua Kali Artisans; Respondent: Daniel N. Ng'ang'a; Respondent: Rahab Wanjiku; Respondent: Joseph N. Momanyi; Respondent: Messr G D & Brothers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 709 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- ARM Visram
- Legal Topics
- Extension of Time, Appeals From Subordinate Courts, Discretion of Court, Filing Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kikuyu Township Jua Kali Artisans
Applicant
Daniel N. Ng'ang'a
Respondent
Rahab Wanjiku
Respondent
Joseph N. Momanyi
Respondent
Messr G D & Brothers
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have shown good and sufficient cause for failing to file the appeal within the prescribed time.
- 2 Whether the court should exercise its discretion to grant leave to file an appeal out of time.
Ratio Decidendi
The court found that the applicants did not require copies of proceedings to lodge their appeal and could have filed the Memorandum of Appeal with a certified copy of the decree or order, which could be filed subsequently. The applicants failed to demonstrate how the missing lower court file or their status as litigants in person prevented them from filing the Memorandum of Appeal within the prescribed time. Consequently, the court was not satisfied that good and sufficient cause had been shown to warrant the exercise of its discretion to grant leave to file the appeal out of time. The application was therefore dismissed with costs to the respondents.
Court Disposition
application dismissed
Orders
- The application dated 26th June, 2002 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Misc Appli 709 of 2002
KIKUYUTOWNSHIPJUA KALI ARTISANS ……..........................................… APPLICANTS
VERSUS
DANIEL N. NG’ANG’A
RAHAB WANJIKU
JOSEPH N. MOMANYI
MESSR G D & BROTHERS ……...………...…...............................................……. RESPONDENTS
RULING
This is an application for leave to file appeal out of time. Judgment was delivered on 1st April, 1998 and the main reasons cited for not filing the Memorandum of Appeal in time are that the lower court’s file had gone missing soon after Judgment was delivered and that the applicants were awaiting lower court’s proceedings.
Section 79 G of the Civil Procedure Act Cap 21, states:
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 of 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 orders:
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.”
The Applicants did not require copies of proceedings to lodge their appeal. All they required was a certified copy of the decree or order sought to be appealed from. Even in that case, Order XLI Rule 1 A of the Civil Procedure Rules provides that the certified copy of the decree or order appealed from may be filed subsequently after the filing of the Memorandum of Appeal.
Even if one were to consider the fact that the file of the lower court went missing and that the Applicants were acting in person, they have not shown how that prevented them from filing the Memorandum of Appeal.
I am not satisfied that the Applicants are entitled to the discretion sought. They have not shown good and sufficient cause for not filing the appeal in time.
I, therefore, dismiss the application dated 26th June, 2002, with costs to the Respondents.
Dated and delivered at Nairobi this 17th day of November, 2004.
ALNASHIR VISRAM
JUDGE