[2008] KEHC 704 (KLR)
The court found that the appellant filed the appeal 33 days after the ruling, exceeding the statutory 30-day period prescribed by Section 79G of the Civil Procedure Act. The appellant did not seek or obtain leave to file the appeal out of time. The court held that compliance with the statutory timeline is mandatory...
Source-derived case information.
- Citation
- [2008] KEHC 704 (KLR)
- Parties
- Appellant: Samuel Kiongo Ndegwa; Respondent: National Bank of Kenya; Respondent: Francis Wainaina Kariuki; Respondent: Daniel Kariuki
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 14 of 2005
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- MM Kasango
- Legal Topics
- Appeal Timelines, Leave to Appeal Out of Time, Dismissal for Lateness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kiongo Ndegwa
Appellant
National Bank of Kenya
Respondent
Francis Wainaina Kariuki
Respondent
Daniel Kariuki
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.
Ratio Decidendi
The court found that the appellant filed the appeal 33 days after the ruling, exceeding the statutory 30-day period prescribed by Section 79G of the Civil Procedure Act. The appellant did not seek or obtain leave to file the appeal out of time. The court held that compliance with the statutory timeline is mandatory unless leave is granted for late filing. Since the appellant failed to comply with the statutory requirements and did not provide any sufficient cause or obtain leave, the appeal was incompetent and was dismissed with costs to the respondents.
Court Disposition
appeal dismissed
Orders
- The appellant’s appeal is dismissed with costs to all the respondents.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Appeal 14 of 2005
SAMUEL KIONGO NDEGWA …..……….………………. APPELLANT
VERSUS
NATIONAL BANK OF KENYA )
FRANCIS WAINAINA KARIUKI )
DANIEL KARIUKI )……………....................…….. RESPONDENT
JUDGMENT
This appeal relates to a ruling delivered in CMCC Nyeri No. 505 of 2005 on 30th March 2005. The appeal was filed on 3rd May 2005. 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 satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
It is clear from those provisions that the appellant ought to have filed his appeal within 30 days of the ruling the subject of the appeal. The appellant if the appeal could not be filed within that period ought to have moved this court for leave to appeal out of time. The appellant did not file the application for leave. He filed the present appeal 33 days after the ruling was delivered. That period makes this appeal to be out of time. Accordingly on that basis alone the appellant’s appeal is hereby dismissed with costs to all the respondents.
Dated and delivered at Nyeri this 16th day of October 2008.
MARY KASANGO
JUDGE