[2014] KEHC 578 (KLR)
The court found that although the Memorandum of Appeal was filed out of time and without leave, the delay was not excessive and the applicant had already complied with court orders by depositing a substantial part of the decretal sum. The court exercised its discretion to regularize the appeal in the interests of...
Source-derived case information.
- Citation
- [2014] KEHC 578 (KLR)
- Parties
- Appellant: Rift Valley Roses (K) Ltd; Respondent: Benki Lepirkine
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 42 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection and Regularization of Appeal Filing
- Outcome
- Memorandum of Appeal deemed properly filed; costs of preliminary objection awarded to respondent; execution stayed pending interpartes hearing of application.
- Judges
- CW Meoli
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rift Valley Roses (K) Ltd
Appellant
Benki Lepirkine
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection and Regularization of Appeal Filing
Legal Issues
- 1 Whether the Memorandum of Appeal filed out of time without leave of court is valid.
- 2 Whether the delay in filing the application warrants striking out the appeal or can be cured by costs.
- 3 Whether the interests of substantive justice require the appeal to be deemed properly filed.
Ratio Decidendi
The court found that although the Memorandum of Appeal was filed out of time and without leave, the delay was not excessive and the applicant had already complied with court orders by depositing a substantial part of the decretal sum. The court exercised its discretion to regularize the appeal in the interests of substantive justice, deeming the Memorandum of Appeal as properly filed. The respondent was awarded costs of the preliminary objection to compensate for any prejudice. The court further ordered that the pending application be heard interpartes and stayed execution until then.
Court Disposition
Memorandum of Appeal deemed properly filed; costs of preliminary objection awarded to respondent; execution stayed pending interpartes hearing of application.
Orders
- The Memorandum of Appeal is deemed properly filed.
- Costs of the preliminary objection are awarded to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIVASHA
CIVIL APPEAL NO. 42 OF 2014
RIFT VALLEY ROSES (K) LTD……………………………….APPELLANT
-VERSUS-
BENKI LEPIRKINE……………………………………………..RESPONDENT
RULING
1. The judgment of the lower court which is the subject of the Memorandum of Appeal and Notice of Motion filed contemporaneously on 1st December 2012 was delivered on 22nd October 2014. Thus whether the Applicants had been served with notice to attend the judgment or not, the Memorandum of Appeal was filed out of time, and without leave of the court. The preliminary objection reused by the applicant therefore has merit.
2. However, the delay in filing the application is not excessive and any prejudice occasioned upon the Respondent can be compensated by costs. In any event the Applicant has in compliance with the orders of the court deposited into court a substantial part of the decretal sum.
3. In order that substantive justice may be done between the parties without further delay, I will deem the impugned Memorandum of Appeal as properly filed but award the costs of the Preliminary Objection to the Respondent.
4. The pending application will be heard interpartes in the new term on a date to be agreed by the parties. Execution stayed until then.
Delivered and signed this 19th day of December, 2014 in the presence of:-
N/A for Applicant
Mr. P. K. Njuguna holding brief for Mr. Mbeche for the Respondent
Court Clerk: Stephen
C.W. MEOLI
JUDGE