[2023] KEHC 27400 (KLR)
The court found that the applicants failed to provide a legally sufficient explanation for the delay in filing the appeal, as the alleged promises by the 1st respondent did not constitute good or sufficient cause under the law. Consequently, the application for leave to appeal out of time was dismissed. The...
Source-derived case information.
- Citation
- [2023] KEHC 27400 (KLR)
- Parties
- Applicant: Edwin Motari; Applicant: David Wachira; Respondent: Wilfred Metobo Onserio; Respondent: Joseph Ndege Nyabayo; Respondent: Platinum Credit Ltd; Respondent: Serah Njoki t/a Sanjomu Auctioneers; Respondent: Jared Ombati t/a Harak Auctioneers
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Suit E001 of 2023
- Procedural Posture
- Miscellaneous Civil Suit / Ruling on Applications for Leave to Appeal Out of Time and Injunctions
- Outcome
- Applications dismissed.
- Judges
- F Gikonyo
- Legal Topics
- Extension of Time, Injunctions, Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Motari
Applicant
David Wachira
Applicant
Wilfred Metobo Onserio
Respondent
Joseph Ndege Nyabayo
Respondent
Platinum Credit Ltd
Respondent
Serah Njoki t/a Sanjomu Auctioneers
Respondent
Jared Ombati t/a Harak Auctioneers
Respondent
Procedural Posture
Miscellaneous Civil Suit / Ruling on Applications for Leave to Appeal Out of Time and Injunctions
Legal Issues
- 1 Whether the applicants have shown sufficient cause to warrant leave to file an appeal out of time.
- 2 Whether the applicants are entitled to temporary and mandatory injunctions against the 3rd respondent.
Ratio Decidendi
The court found that the applicants failed to provide a legally sufficient explanation for the delay in filing the appeal, as the alleged promises by the 1st respondent did not constitute good or sufficient cause under the law. Consequently, the application for leave to appeal out of time was dismissed. The application for temporary and mandatory injunctions was also dismissed, as the temporary injunction had already been granted by the trial court and the mandatory injunction sought would amount to granting a final order at an interim stage, which is only permissible in exceptional circumstances not present in this case.
Court Disposition
Applications dismissed.
Orders
- The application for leave to file appeal out of time is dismissed with no order as to costs.
- The application for temporary and mandatory injunctions is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
Motari & another v Onserio & 4 others (Miscellaneous Civil Suit E001 of 2023) [2023] KEHC 27400 (KLR) (27 November 2023) (Ruling)
Neutral citation: [2023] KEHC 27400 (KLR)
Republic of Kenya
In the High Court at Narok
Miscellaneous Civil Suit E001 of 2023
F Gikonyo, J
November 27, 2023
Between
Edwin Motari
1st Applicant
David Wachira
2nd Applicant
and
Wilfred Metobo Onserio
1st Respondent
Joseph Ndege Nyabayo
2nd Respondent
Platinum Credit Ltd
3rd Respondent
Serah Njoki t/a Sanjomu Auctioneers
4th Respondent
Jared Ombati t/a Harak Auctioneers
5th Respondent
Ruling
Twining of applications 1. Two motions are before the court. Both are dated 1st February, 2023. The first application is seeking leave to file appeal out of time. The second; is seeking temporary as well as mandatory injunction against the 3rd respondent.
Leave to file appeal out of time 2. The appellate court may admit an appeal filed out of time as long as it is satisfied that there was good or sufficient cause for not filing the appeal in time.
3. The ruling subject of the application was delivered on 14th September 2022. The application for extension of time was filed on 2nd February 2023. There is a considerable period of time that lapsed before the application herein was filed. The 1st applicant seems to suggest that the delay was caused by the conduct of the 1st respondent who kept on promising that once he clears the outstanding loan for which the items were distressed, he would release the items to him. The respondents have vehemently opposed the applicant’s claim on the items in question. Therefore, the explanation given of the delay cannot be sufficient reason in the sense of the law for which leave to appeal out of time could be given. Accordingly, the application for leave to appeal out of time is dismissed with no order as to costs.
Injunctions: temporary and mandatory 4. The application for temporary and mandatory injunctions is a saddle upon the application for leave to appeal out of time. In light of the result on the latter application, the former falls by the way side.
5. Nonetheless, the temporary injunction sought was granted by the trial court in the exact terms sought in the application now before the court. A court of law should never issue unnecessary or orders in vain or engage in duplication of effort.
6. The mandatory injunction sought in the nature of release of the attached goods to the 1st applicant should ordinarily be the final order in the intended appeal; and may not be issued at interim stage except where there are exceptional circumstances which is absent here.
7. For those reasons, the application is dismissed with no orders as to costs.
DATED, SIGNED, AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 27TH DAY OF NOVEMBER, 2023. F. Gikonyo M.JudgeIn the presence of: -1. Court Assistant – Otoro2. Applicant – Present3. M/s Cheruto for 1st & 2nd Respondents - Present