[2023] KEHC 17434 (KLR)
The court found that the applicant's delay in filing the appeal was less than two months and occurred during a period recognized by the Civil Procedure Rules as court vacation, during which time is not to be reckoned for filing purposes. The explanation for the delay was reasonable and excusable. Therefore, leave to...
Source-derived case information.
- Citation
- [2023] KEHC 17434 (KLR)
- Parties
- Applicant: Abeid Ramadhan; Respondent: UAP Insurance Company Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E099 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Proceedings
- Outcome
- partly allowed
- Judges
- DKN Magare
- Legal Topics
- Leave to Appeal Out of Time, Stay of Proceedings, Computation of Time, Vacation Periods, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abeid Ramadhan
Applicant
UAP Insurance Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Proceedings
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time from the ruling delivered on December 22, 2022.
- 2 Whether an order for stay of proceedings should be granted pending the intended appeal.
Ratio Decidendi
The court found that the applicant's delay in filing the appeal was less than two months and occurred during a period recognized by the Civil Procedure Rules as court vacation, during which time is not to be reckoned for filing purposes. The explanation for the delay was reasonable and excusable. Therefore, leave to appeal out of time was granted. However, the court was not satisfied that a stay of proceedings was warranted, as the intended appeal could be considered before the trial and any loss was reversible. The application was thus partly allowed: leave to appeal out of time was granted, but the prayer for stay of proceedings was declined.
Court Disposition
partly allowed
Orders
- Leave is granted to the Applicant to file an appeal out of time from the Ruling of Hon. David O. Mbeja given on December 22, 2022 in Mombasa CMCC 256 of 2022.
- The order of stay of proceedings is declined.
Full Case Text
Judgment text and source record
25 paragraphs
Ramadhan v UAP Insurance Company Limited (Miscellaneous Application E099 of 2023) [2023] KEHC 17434 (KLR) (2 May 2023) (Ruling)
Neutral citation: [2023] KEHC 17434 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Application E099 of 2023
DKN Magare, J
May 2, 2023
Between
Abeid Ramadhan
Plaintiff
and
UAP Insurance Company Limited
Defendant
Ruling
1. The Application dated 28/3/2022 seeks orders of stay of proceedings and leave to Appeal out of time.
2. The Appeal was not filed by 28/2/2023. The Ruling was delivered on December 22, 2022. It is said that the Ruling was delivered in the absence of parties on the said date.
3. The Civil Procedure Rules provides that the period between 21st December, and 13th January, is not to be reckoned with. In this period matters where advocates are involved should not be dealt with. The advocates should be enjoying their vacation. Courts should fix only matters where parties are prose or the parties have requested.
4. The period is a period of General Madness, where parties and their advocates take a break to meet their families or swim.
5. This period thus has solid excuses. The full in the period is understandable. The Applicant has been late for less than 2 months. I am satisfied that leave to Appeal should be granted.
6. Regarding stay of proceedings, I am not satisfied that intended Appeal will not be considered before the trial. I will not order stay of proceedings. In any case, given that it is purely an issue of law, there is not loss in proceeding as the loss is reversible.
7. I therefore order that the Appellant be and is hereby granted leave to Appeal out of time from the Ruling dated December 22, 2022 given by D.O. Mbeja.
8. The appeal shall be filed within 14 days from today. The applicant to place the Appeal immediately for direction on hearing.
9. The prayer for stay is dismissed.
Determination 10. The application is partly allowed as follows: -a.Leave is granted to the Applicant to file an appeal out of time from the Ruling of the Honorable David O. Mbeja, given on December 22, 2022 in Mombasa CMCC 256 of 2022. b.The order of stay of proceedings is declined.c.The memorandum of appeal be filed within 14 days.d.The Applicant herein to place the matters before court together with order appealed from for directions.e.Each party to bear their costs.f.This file is closed.
DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 2ND DAY OF MAY, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Miss Monari for the ApplicantNo appearance for the RespondentCourt Assistant – Aziza