[2008] KEHC 735 (KLR)
The court found that the applicant failed to provide a satisfactory or sufficient explanation for the delay in seeking extension of time to appeal. The mere assertion that the matter was left in the hands of her advocates, without any evidence of follow-up or instructions, was deemed inadequate. Furthermore, the...
Source-derived case information.
- Citation
- [2008] KEHC 735 (KLR)
- Parties
- Plaintiff: Toplink Auctioneers; Defendant: Astral Aviation Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1719 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Extend Time for Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Extension of Time, Appeals Process, Auctioneers Bill of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Toplink Auctioneers
Plaintiff
Astral Aviation Ltd
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Extend Time for Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for extension of time to file an appeal against the taxed bill of costs.
- 2 Whether the delay in filing the application for extension of time is adequately explained.
- 3 Whether the proposed appeal has reasonable prospects of success.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory or sufficient explanation for the delay in seeking extension of time to appeal. The mere assertion that the matter was left in the hands of her advocates, without any evidence of follow-up or instructions, was deemed inadequate. Furthermore, the applicant did not demonstrate that the proposed appeal had any reasonable prospects of success. The court emphasized that the right of appeal and the procedure for filing such appeals are clearly set out in the relevant rules, and the applicant did not comply with these requirements. Consequently, the application for extension of time was dismissed for lack of merit.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to extend time for filing the appeal is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Misc Case 1719 of 2007
TOPLINK AUCTIONEERS………..……....PLAINTIFF
VERSUS
ASTRAL AVIATION LTD….……....…...DEFENDANT
RULING
Application dated 17. 06. 2008 under Order XLIX Rule 5 and Section 799 Civil Procedure Act seeking order to extend time for filing the appeal against Auctioneers Bill of Costs taxed on 06. 02. 2008 on the grounds that the applicant had left the matter in the hands of her Advocates only to discover later he had not filed appeal. The certificate of Taxation was issued on 19. 12. 2008.
The right of Appeal is donated by Rule 55 of Auctioneers Rule 4 which states that an appeal from Magistrate or Registrar or the Board shall be to a Judge in Chambers by way of chamber Summons setting out the grounds of the appeal. The appeal shall be filed within 7 days of the decision of the Registrar or Magistrate.
In this case there is delay. The ruling given by the Deputy Registrar on 06. 02. 2008 gave right of appeal within 28 days. That would bring the date of appeal to 5th March 2008. The applicant did not file this application until 18. 06. 2008 a period of more than 3 months. Furthermore no sufficient explanation has been offered for the delay.
If it is true she left the matter in the hands of her Advocate, she should, at least have visited his offices to check on the matter and to give instructions, as it is, she just says “applicant was under the impression that her Advocates had lodged an appeal.” This is not satisfactory explanation. There is no evidence to support the statement.
On the other hand, I have perused the proposed memorandum of appeal. Note that the procedure is by chamber summons not remorandum. I have also perused the written ruling made by Deputy Registrar. There has been no demonstration by applicant that the proposed appeal has good chances of success.
I therefore see no merit in the application. The same is dismissed with costs to the Respondent.
It is so ordered.
DATED this 24th day of October 2008.
JOYCE N. KHAMINWA
JUDGE