[2023] KEHC 2349 (KLR)
The court found that the applicant had provided a persuasive explanation for his failure to file the record of appeal within the stipulated time, namely, the unavailability of lower court proceedings. The court was satisfied that the delay was not deliberate and that the applicant acted promptly upon learning of the...
Source-derived case information.
- Citation
- [2023] KEHC 2349 (KLR)
- Parties
- Applicant: Osman Haji Salaad; Respondent: Motrex Limited
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 47 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application to Reinstate Appeal and Extend Time to File Record of Appeal
- Outcome
- Application allowed. Appeal reinstated. Time to file record of appeal extended by 45 days.
- Judges
- REA Ougo
- Legal Topics
- Appeal Reinstatement, Extension of Time, Record of Appeal, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Osman Haji Salaad
Applicant
Motrex Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Reinstate Appeal and Extend Time to File Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for failure to file the record of appeal within the stipulated time.
- 2 Whether the appeal should be reinstated and time extended for filing the record of appeal.
Ratio Decidendi
The court found that the applicant had provided a persuasive explanation for his failure to file the record of appeal within the stipulated time, namely, the unavailability of lower court proceedings. The court was satisfied that the delay was not deliberate and that the applicant acted promptly upon learning of the effect of the court's order. The court further held that no prejudice would be caused to the respondent, as any inconvenience could be compensated by costs. Exercising its discretion, the court set aside the order dismissing the appeal, reinstated the appeal, and extended the time for filing the record of appeal by 45 days.
Court Disposition
Application allowed. Appeal reinstated. Time to file record of appeal extended by 45 days.
Orders
- The order dismissing the appeal is set aside.
- The appeal is reinstated.
Full Case Text
Judgment text and source record
18 paragraphs
Salaad v Motrex Limited (Civil Appeal 47 of 2018) [2023] KEHC 2349 (KLR) (1 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2349 (KLR)
Republic of Kenya
In the High Court at Bungoma
Civil Appeal 47 of 2018
REA Ougo, J
March 1, 2023
Between
Osman Haji Salaad
Applicant
and
Motrex Limited
Respondent
Ruling
RULING ON APPLICATION 1. I have considered the notice of motion dated December 20, 2022. It is correct that this court gave a conditional order on the 13. 0.2022. The applicant was given 30 days to file the record of appeal. The applicant states that he didn’t comply because the records from the lower court weren’t ready.
2. The application was opposed. I have considered the affidavits on record and the written submissions. In my view the applicant has explained the issues he had in obtaining the proceedings. His reasons are persuasive. The appellant is desirous of pursuing his appeal. He has had the misfortune of not obtaining the proceedings to file his record of appeal. He filed the instant application the moment he was informed that the court order of December 13, 2022 had taken effect. No prejudice will be caused to the respondent as it can be compensated by way of costs. I will therefore exercise my discretion in favour of the applicant.
3. I set aside the order dismissing the appeal. The appeal is reinstated. The applicant’s time to file their record of appeal is extended by a further 45 days. The matter will be mentioned after the 45 days to confirm compliance and for directions on the hearing of appeal.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 1ST DAY OF MARCH, 2023. R.E. OUGOJUDGEIn the presence of:Miss Chepkurui holding brief Mr. Ngigi for the RespondentRespondent AbsentWilkister C/A