[2006] KEHC 2170 (KLR)
The court found that the appeal was filed outside the statutory thirty-day period allowed for appeals. The certificate of delay indicated that the proceedings were supplied on 22nd October, 2001, and not on the date the certificate was issued. Therefore, the time for filing the appeal had not expired as of 22nd...
Source-derived case information.
- Citation
- [2006] KEHC 2170 (KLR)
- Parties
- Appellant: Lucy Wanjuguna Ndegwa; Appellant: Lilian Nyawira Ndegwa; Appellant: Peter Kamau Ndegwa; Respondent: Maki Commercial Agencies; Respondent: Charles Githinji Muturi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 147 of 2001
- Procedural Posture
- Civil Appeal / Preliminary Objection Ruling
- Outcome
- appeal dismissed as incompetent
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Wanjuguna Ndegwa
Appellant
Lilian Nyawira Ndegwa
Appellant
Peter Kamau Ndegwa
Appellant
Maki Commercial Agencies
Respondent
Charles Githinji Muturi
Respondent
Procedural Posture
Civil Appeal / Preliminary Objection Ruling
Legal Issues
- 1 Whether the appeal was filed within the statutory time limit.
- 2 Whether a certificate of delay can extend the time for filing an appeal without leave of court.
- 3 Whether the appeal is incompetent for want of leave to file out of time.
Ratio Decidendi
The court found that the appeal was filed outside the statutory thirty-day period allowed for appeals. The certificate of delay indicated that the proceedings were supplied on 22nd October, 2001, and not on the date the certificate was issued. Therefore, the time for filing the appeal had not expired as of 22nd October, 2001, but the appeal was only filed on 21st November, 2001, after the lapse of the thirty days. The appellants did not seek or obtain leave of court to file the appeal out of time. Consequently, the appeal was incompetent and had to be dismissed.
Court Disposition
appeal dismissed as incompetent
Orders
- The preliminary objection is upheld.
- The appellants' appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Appeal 147 of 2001
1. LUCY WANJUGUNA NDEGWA
2. LILIAN NYAWIRA NDEGWA
3. PETER KAMAU NDEGWA ……........................................…………………APPELLANTS
Versus
1. MAKI COMMERCIAL AGENCIES………...........................……………1st RESPONDENT
2. CHARLES GITHINJI MUTURI ……...............................…….……….2ND RESPONDENT
RULING
As I was beginning to hear appeal in this matter, Mr. Wahome Gikonyo, counsel for the Respondent, raised a preliminary objection pointing out that the appeal is incompetent for having been filed out of time. Mr. Kebuka Wachira, counsel for the Appellant did not agree. After hearing their respective submissions in the light of the documents filed, I hold that the position, briefly, is as follows.
The appeal is against the ruling and order delivered on 4th October, 2001. The appeal was filed on 21st November, 2001. It ought to have been filed within thirty days after the date 4th October, 2001, and therefore the filing of that appeal on 21st November, 2001 was outside thirty days allowed.
A certificate of delay from a court is only a piece of evidence to be placed before the court hearing an application for extension of time. It follows that with or without a certificate of delay a party wishing to file an appeal out of time must seek leave of the court.
Further, since the certificate of delay the Appellant is relying upon clearly states that the proceedings were supplied on 22nd October, 2001, it is not correct for the Appellant to argue tat the date, 21st November, 2001, when that certificate was written and signed was the date on which the proceedings were supplied. As at the date 22nd October, 2001 when the proceedings were supplied, the time within which to appeal had not run out. But when the appeal was filed later on 21st November, 2001, that was clearly out of time and the Appellant ought to have obtained leave of the court to file the appeal. Since he did not have that leave, I must agree with what Mr. Wahome Gikonyo is saying that the Appellants’ appeal in this matter is incompetent. The preliminary objection is therefore up held and the appellant’s appeal is hereby dismissed with costs to the respondent.
Dated this 15th day of June, 2006.
J. M. KHAMONI
JUDGE