[2015] KEHC 5340 (KLR)
The court found that the appellant filed the appeal on 13th January 2010, whereas the judgment being appealed was delivered on 2nd December 2009. The statutory period for filing an appeal under Section 79G of the Civil Procedure Act is thirty days, which expired on or before 1st January 2010. The appellant did not...
Source-derived case information.
- Citation
- [2015] KEHC 5340 (KLR)
- Parties
- Appellant: Obadiah Ng’ethe Ngugi; Respondent: Chania Transport Co. Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 3 of 2010
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal struck out
- Judges
- MM Kasango
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Obadiah Ng’ethe Ngugi
Appellant
Chania Transport Co. Ltd
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal was filed within the statutory period prescribed by Section 79G of the Civil Procedure Act.
- 2 Whether the appellant sought and obtained leave to file the appeal out of time.
- 3 Whether the appeal is competent before the court.
Ratio Decidendi
The court found that the appellant filed the appeal on 13th January 2010, whereas the judgment being appealed was delivered on 2nd December 2009. The statutory period for filing an appeal under Section 79G of the Civil Procedure Act is thirty days, which expired on or before 1st January 2010. The appellant did not seek or obtain leave of the court to file the appeal out of time. Consequently, the court held that there was no competent appeal before it and that the appeal must be struck out for being filed outside the prescribed period without leave. The merits of the appeal were not considered due to this procedural defect.
Court Disposition
appeal struck out
Orders
- The appeal is hereby struck out with costs to the respondent for having been filed out of the thirty (30) days period provided under Section 79G.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 3 OF 2010
OBADIAH NG’ETHE NGUGI …………………...…………APPELLANT
V E R S U S
CHANIA TRANSPORT CO. LTD …………………………RESPONDENT
(Being an appeal from the Judgment of the Resident Magistrate Court, Kwale Hon. Mrs. A. M. Obura in RMCC No. 16 of 2009 on 2nd December 2009 in RMCC No. 16 of 2009)
JUDGMENT
Appellant filed a case before the Resident Magistrate at Kwale Court seeking special and general damages which resulted in accident involving a vehicle allegedly owned by the Respondent.
The trial Court after receiving evidence from the Appellant, since Respondent did not offer any, delivered its judgment on 2nd December 2009. The trial Court by that judgment dismissed Appellant’s case. Appellant being dissatisfied with that judgment filed this appeal. Appellant filed his appeal before this Court on 13th January 2010.
Section 79G of the Civil Procedure Act provides as follows-
“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 any 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 order.
PROVIDED that an appeal may be admitted out of time if the appellant satisfied the Court that he had good and sufficient cause for not filing the appeal in time.”
From my calculation Appellant should have filed his appeal on or before 1st January 2010. Having filed it on 13th January 2010 clearly ran afoul of the Law, more particularly Section 79G reproduced above. It follows therefore that there is no competent appeal before this Court since the Appellant did not seek leave of the Court for the appeal to be admitted out of time.
The appeal was heard by way of written submissions on merit. That as it may be the appeal will be determined by Appellant’s failure to obtain leave to admit the appeal out of time.
Accordingly this appeal is hereby struck out with costs to the Respondent for having been filed out of the thirty (30) days period provided under Section 79G.
DATED and DELIVERED at MOMBASA this 3RD day of MARCH, 2015.
MARY KASANGO
JUDGE