[2011] KEHC 2565 (KLR)
The court found that the delay in prosecuting the appeal was primarily due to the lower court's delay in forwarding the original file to the High Court, a matter over which the applicant had no control. The applicant had made several documented efforts to obtain the file and set the appeal down for hearing. The...
Source-derived case information.
- Citation
- [2011] KEHC 2565 (KLR)
- Parties
- Appellant: Labex Scientific Agencies Ltd; Respondent: Joel Amenya Gekonge
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 78 of 2007
- Procedural Posture
- Civil Appeal / Application for Extension of Time to Prosecute Appeal
- Outcome
- Application allowed; extension of time granted with conditions.
- Legal Topics
- Extension of Time, Appeals Process, Interlocutory Judgment, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Labex Scientific Agencies Ltd
Appellant
Joel Amenya Gekonge
Respondent
Procedural Posture
Civil Appeal / Application for Extension of Time to Prosecute Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for extension of time to prosecute the appeal.
- 2 Whether the delay in prosecuting the appeal was occasioned by circumstances beyond the applicant's control.
- 3 Whether the applicant should bear the costs of the application.
Ratio Decidendi
The court found that the delay in prosecuting the appeal was primarily due to the lower court's delay in forwarding the original file to the High Court, a matter over which the applicant had no control. The applicant had made several documented efforts to obtain the file and set the appeal down for hearing. The court held that it would be unjust to penalize the applicant for administrative delays caused by the court system. Exercising its discretion, the court granted the extension of time for the appeal to be prosecuted, but ordered that the applicant bear the costs of the application. The court further directed that the appeal be set down for hearing within four months, failing which...
Court Disposition
Application allowed; extension of time granted with conditions.
Orders
- The period within which the appeal is to be prosecuted is extended.
- Parties to take a hearing date at the registry for the appeal to be heard within the next 4 months from the date of the ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 78 OF 2007
(Appeal from the ruling of the Principal Magistrate dated the 20th day of April, 2007 in Naivasha
Resident Magistrate’s CourtCivil Case No. 678 of 2006)
LABEX SCIENTIFIC AGENCIES LTD...................................................................................................APPELLANT
VERSUS
JOEL AMENYA GEKONGE................................................................................................................RESPONDENT
RULING
The Notice of Motion dated 8/12/2010 was filed pursuant to Order XLIX Rule 5and Order L Rule 1 of the Civil Procedure Rules and Section 3Aof theCivil Procedure Act. The applicant is Labex Scientific Agencies Ltd who had preferred an appeal against the ruling of the trial court in Naivasha RMCC 678/06 in which the applicant sought to set aside the interlocutory judgment that had been entered against it. On 12/5/2010, the applicant was allowed 6 months to prosecute its appeal but did not do so. That is why the applicant has filed this application seeking orders that the time allowed to prosecute the appeal be extended and the court do issue any further orders it deems fit to grant. The application is based on grounds found in the body of the application and an affidavit sworn by Dilipsinh Prabhatsinh Mahida, counsel for the applicant. Counsel deponed that the record of appeal was filed on 15/10/2009 but he could not list the appeal for directions or hearing because the lower court file had not been received by this court. At the counsel’s request a 2nd reminder was sent to Naivasha Principal Magistrate’s on 15/4/2010 for the lower court to forward the file (DPM1). The applicant made several attempts through Mburu F.I. & Co. Advocates as evidenced by the letter dated 5/8/2010. That the lower court forwards the date – 10/8/2010 as evidenced by the letter DPM II. The Deputy Registrar gave directions on 12/10/2010 and the counsel tried to have the appeal fixed for hearing as per letter of 23/9/2010 – DPM IVA and B, but the diary for the year 2010 was already closed. Mr. Mahida submitted that the applicant has no control over movement of files from one court to another and that is why this application has been preferred.
The application was opposed and a replying affidavit was sworn by the respondent. He deponed that on 12/5/2010, when the court directed that the appeal be heard within 6 months, the applicant’s counsel never indicated to the court that the record of appeal was not yet ready and what is contained in this application is a falsehood. It is also submitted that the respondent has lost interest in the case, the application is brought in bad faith and should be dismissed. Mr. Juma, counsel for the respondent submitted that the applicant should have applied for setting aside of the order of 12/5/2010 before making this application and the orders sought cannot lie.
When the court allowed the appellant 6 months within which to prosecute the appeal on 12/5/2010, the appeal had not even been admitted. It was admitted on 29/9/2010. The applicant has exhibited DPM III, a letter from High Court Nakuru, to the Principal Magistrate’s Court Naivasha, acknowledging that the court file accompanied by letter dated 19/7/2010 in SPMCC 678/06, had been received by the Nakuru High Court. A hearing date could only be taken after the original record of the lower court had been received by this court.
It is the applicant’s contention that when the original file was received they invited the respondent vide their letter dated 23/9/2010, with a view a view to taking hearing date and another dated 14/10/2010 but that by that time, there were no dates available in the diary for that year. I do appreciate that the applicants could not have any control over the original proceedings in PMCC 678/06. It was the duty of the lower court to forward the file to this court so that the appeal could be set down for hearing. That delay cannot be visited on the applicants. The applicant could only request for the file and wait. For the above reasons and in exercise of this court’s discretion there is good ground to have the period within which the appeal was to be prosecuted extended. I therefore direct that the parties do take a hearing date at the registry for the appeal to be heard for hearing within the next 4 months from today’s date. In default, the appeal stands dismissed. The applicant to bear costs of the application.
DATED and DELIVERED this 13th day of April 2011.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Mwangi holding brief for mr. Mahida for the applicant.
Mr. Simiyu holding brief for Mr. Gekonga for the respondent.
Kennedy – Court Clerk.