[2020] KEHC 5180 (KLR)
The court found that although the appeal was filed out of time, the delay was not inordinate, being less than four days and occasioned by the last day falling on a Sunday. The court recognized its discretion under Article 159(2)(d) of the Constitution and Order 50 Rule 6 of the Civil Procedure Rules to extend time...
Source-derived case information.
- Citation
- [2020] KEHC 5180 (KLR)
- Parties
- Appellant: Simon Kimutai; Respondent: Annah Wanja Marui; Judgment Debtor: Invesco Assurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 54 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Application for Stay Pending Appeal
- Outcome
- Application for striking out the appeal dismissed; applicant granted leave to file application for admission of appeal out of time within 21 days.
- Judges
- LW Gitari
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kimutai
Appellant
Annah Wanja Marui
Respondent
Invesco Assurance Co. Ltd
Judgment Debtor
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Application for Stay Pending Appeal
Legal Issues
- 1 Whether the appeal was filed out of time and without leave of the court.
- 2 Whether the court should strike out the appeal or grant leave to file out of time.
Ratio Decidendi
The court found that although the appeal was filed out of time, the delay was not inordinate, being less than four days and occasioned by the last day falling on a Sunday. The court recognized its discretion under Article 159(2)(d) of the Constitution and Order 50 Rule 6 of the Civil Procedure Rules to extend time and to do substantive justice rather than rely on procedural technicalities. Consequently, the court declined to strike out the appeal and instead granted the applicant leave to file an application for admission of the appeal out of time within 21 days.
Court Disposition
Application for striking out the appeal dismissed; applicant granted leave to file application for admission of appeal out of time within 21 days.
Orders
- The applicant to file an application for leave to admit the appeal out of time within 21 days.
- No order as to costs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
MISCELLANEOUS APPLICATION NO: 54 OF 2019
SIMON KIMUTAI......................................................................APPELLANT
VERSUS
ANNAH WANJA MARUI..................................................RESPONDENT
INVESCO ASSURANCE CO. LTD..............JUDGMENT - DEBTOR
RULING:
The appellant filed a memorandum of appeal dated 25th July, 2019 he has filed an appeal against the ruling and orders issued by G. K. Odhiambo on 21st June, 2019 in the PMCC Court at Gichugu Civil Case No. 57 of 2018.
The appellant also filed a Notice of Motion on the same date, seeking orders that there be an interim order of stay of any further proceedings in the lower court including attendance to court by the appellant and on 31st July, 2019 to be cross examined by the respondent.
Pending the hearing and determination of the appeal the court be pleased to order a stay of any further proceedings in the lower court including attendance to court by the appellant to be cross- examined by the respondent herein as per the summons dated 20th July, 2019.
The respondent has filed notice of Preliminary objection to the application dated 25th July, 2019 and the entire appeal contending that the appeal was filed out of time and without leave of the court.
No substantive application can be made in an appeal filed out of time and hence incompetent ab initio.
The preliminary objection was argued by way of written submissions,
I have considered the application.
The issue for determination is;
- Whether the appeal was filed out of time and without leave of the court.
The applicant is submitting that the delay in filing the appeal was not inordinate. The respondent assertion that the appellant filed the appeal five days outside the stipulated period of 30 days is false. This is because the latest day of filing the appeal ought have been on the 21st July, 2019. However, 21st July, 2019 was a Sunday and therefore the appeal could not have been filed and the delay in filing is less than four days.
For the respondents;
- The memorandum of appeal indicates that the appeal is against the ruling delivered on 21st June, 2019. Section 79 (g) provides that;
- “ An appeal against the orders and judgment of the lower court should be filed within 30 days.
- Thirty days lapsed on 20th July, 2019 and the appeal was filed five (5) days outside time.
- There is no doubt that the appeal was filed outside time, as the applicant has admitted that the period of delay was less than four (4) days.
- The applicant filed the appeal outside time and Under Section 79 (g) he did not seek leave of the court to file the appeal out of time or to extend the time for filing the appeal.
- Article 159 of the Constitution enjoins the court to do Justice, to do substantial justice other than rely on procedural technicalities. Article 159 (2) ( d) of The Constitution states as follows;
“ Justice shall be administered without undue regard to procedural technicalities.
- The court has discretion to extend time. Order 50 Rule 6 of The Civil Procedure rules gives the court power to enlarge the time and the court may order the time to be extended, though no application to extend time has been made.
- Striking out of pleadings has been stated to be draconian and rules of procedure are hands maiden of justice and where court is confronted with fraud pleadings it should seek to do substantive justice other than rely on procedural technicalities.
There are various provisions which allow the court to admit the appeal out of time. Article 159 ( (2) ( d) ,Section 79 (g) of CPA and Order 50 Rule 6.
- The Court has power under this provisions to admit the appeal which is filed out of time.
- I find that the delay in filing the appeal was not in ordinate.
- I should exercise discretion by not striking out the appeal and give the applicant leave. But give the applicant time to file an application for leave to admit the appeal out of time.
- The application for leave to file out of time be filed within 21 days.
Dated, Signed at Kerugoya this 29th day of May 2020.
L.W. GITARI
JUDGE