[2004] KEHC 1251 (KLR)
The court found that the applicants did not require copies of proceedings to file their appeal and could have filed the Memorandum of Appeal with the certified copy of the decree or order to follow. The fact that the lower court's file went missing and that the applicants were acting in person did not constitute...
Source-derived case information.
- Citation
- [2004] KEHC 1251 (KLR)
- Parties
- Applicant: Kikuyu Township Jua Kali Artisans; Respondent: Daniel N. Ng'ang'a; Respondent: Rahab Wanjiku; Respondent: Joseph N. Momanyi
- 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 File Appeal Out of Time
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Extension of Time, Appeals From Subordinate Courts, Requirements for Appeal, Judicial Discretion
- 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
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicants have shown good and sufficient cause for not filing 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 file their appeal and could have filed the Memorandum of Appeal with the certified copy of the decree or order to follow. The fact that the lower court's file went missing and that the applicants were acting in person did not constitute good and sufficient cause for the delay. The applicants failed to demonstrate how these circumstances prevented them from filing the appeal within the prescribed time. Consequently, the court was not satisfied that the applicants were entitled to the exercise of discretion to extend time and dismissed the application.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 26th June, 2002 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS APPLICATION NO 709 OF 2002
KIKUYU TOWNSHIP JUA KALI ARTISANS ……...… APPLICANTS
VERSUS
DANIEL N. NG’ANG’A )
RAHAB WANJIKU )
JOSEPH N. MOMANYI )……...………...………. ..............................RESPONDENTS
MESSR GD & BROTHERS
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 soonafter 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 fr om 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 26thJune, 2002, with costs to the Respondents.
Dated and delivered at Nairobi this 17 th day of November, 2004.
ALNASHIR VISRAM
JUDGE