[2024] KEHC 3830 (KLR)
The appeal was filed more than seven months outside the statutory 30-day period prescribed by section 79G of the Civil Procedure Act. No evidence was provided that leave was sought or obtained to file the appeal out of time, nor was any good cause demonstrated for the delay. The court found the appeal to be...
Source-derived case information.
- Citation
- [2024] KEHC 3830 (KLR)
- Parties
- Appellant: Roselyne Shibuko Wamukoya; Respondent: Lynett Oloo Mayabi
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E040 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Time Barred Appeal
- Outcome
- Appeal struck out as time-barred.
- Judges
- WM Musyoka
- Legal Topics
- Appeal Out of Time, Extension of Time, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Roselyne Shibuko Wamukoya
Appellant
Lynett Oloo Mayabi
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Time Barred Appeal
Legal Issues
- 1 Whether the appeal was filed within the statutory period prescribed under section 79G of the Civil Procedure Act.
- 2 Whether leave was sought and obtained to file the appeal out of time.
- 3 Whether there was good cause demonstrated for the delay in filing the appeal.
Ratio Decidendi
The appeal was filed more than seven months outside the statutory 30-day period prescribed by section 79G of the Civil Procedure Act. No evidence was provided that leave was sought or obtained to file the appeal out of time, nor was any good cause demonstrated for the delay. The court found the appeal to be time-barred and stale, and therefore struck it out. Costs were awarded to the respondent due to repeated court attendances by their advocate.
Court Disposition
Appeal struck out as time-barred.
Orders
- The appeal is struck out for being filed out of time without leave.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
Wamukoya v Mayabi (Civil Appeal E040 of 2022) [2024] KEHC 3830 (KLR) (19 April 2024) (Ruling)
Neutral citation: [2024] KEHC 3830 (KLR)
Republic of Kenya
In the High Court at Busia
Civil Appeal E040 of 2022
WM Musyoka, J
April 19, 2024
Between
Roselyne Shibuko Wamukoya
Appellant
and
Lynett Oloo Mayabi
Respondent
(An appeal arising from ruling and order by Hon. L. Ambasi, Chief Magistrate, CM, in Busia CMC Misc. Application No. E021 of 2021, of 28th September 2021)
Ruling
1. The memorandum of appeal herein, dated 10th November 2022, was lodged herein on 11th November 2022, to challenge an order of the trial court made on 28th September 2021.
2. Under section 79G of the Civil Procedure Act, Cap 21, Laws of Kenya, an appeal to the High Court, from a decree or order of a subordinate court, should be filed within 30 days of the decree or order. 30 days from 28th September 2021 expired on or about 28th October 2021. That would be the date by which any challenge, by way of appeal, against that order, should have been lodged at the High Court. The same provision though allows the court to extend time for filing an appeal out of time, for good cause.
3. The appeal herein was lodged at the registry herein some 8 months and 13 days thereafter. It was filed at least some 7 months outside time. No material has been placed before me as evidence that leave was sought and obtained to bring the appeal out of time. No attempt has been made to demonstrate good cause for filing the appeal late.
4. As the appeal before me is stale, it should suffer only one fate, of being struck out, and I hereby strike it out. I note that the Advocate for the respondent has attended court several times, and so I shall award costs to the respondent..
DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 19TH DAY OF APRIL 2024. WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Egesa, instructed by Bogonko Otanga & Company, Advocates for the appellant.Mr. Ashioya, instructed by Ashioya & Company, Advocates for the respondent.