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High CourtAllowedNot stated in judgment (Co-operative Tribunal Nairobi Case No. 1 of 2017 referenced)

Applicants v Respondent (Notice of Motion dated 4th July 2019)

High Court of Kenya
5 November 2019
HCH K Chemitei
932 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Lack of clear notice or service of judgment can lead a Kenyan court to grant you an extension to file an appeal.

What this practically means

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Executive summary

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The applicants moved the High Court at Kitale by Notice of Motion dated 4th July 2019 seeking extension of time to file an appeal against a ruling of the Co-operative Tribunal in Nairobi Case No. 1 of 2017, delivered on 8th January 2018, and a stay of further proceedings, particularly the assessment of the respondent's bill of costs. The applicants deponed that the tribunal never issued notice of the judgment delivery date; they learned of it only when their counsel was served with the bill of costs for assessment, and they contended the tribunal failed to consider their submissions, breaching natural justice. The respondent, through the replying affidavit of Patrick Mugun, opposed the application, asserting the applicants were indolent, had not followed up the matter at the tribunal registry, and that their complaint did not concern the surcharge which was the subject of the dispute. The court disposed of the application by written submissions. Applying the proviso to Section 79G of the Civil Procedure Act, the court noted confusion over the ruling date - the ruling itself referenced directions of 6th March 2018 and submissions received on 4th May 2018, after the purported delivery date - and, absent the tribunal proceedings and any evidence of service on the applicants' counsel, granted the applicants the benefit of doubt. The court declined to examine the merits of the intended appeal. The application was allowed: leave to appeal within 30 days, stay of taxation pending the appeal, liberty for the respondent to proceed with taxation if the appeal was not filed in time, and costs of the application to the respondent.

Key legal issues

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01

Whether good and sufficient cause existed for the delay in filing the appeal

Holding

The court found lack of clarity on the delivery date of the tribunal ruling and absence of evidence of service on the applicants' counsel, and granted the applicants the benefit of doubt.

Reasoning

The tribunal record suggested the ruling was delivered on 8th January 2018 yet the ruling itself referenced directions of 6th March 2018 for filing submissions, and the applicants' submissions were received on 4th May 2018 after the ruling. Without the tribunal proceedings and without proof of service of the judgment date, the court could not resolve the chronology and extended time.

p. 2
02

Whether the court should consider the merits of the intended appeal

Holding

The court declined to assess the merits of the intended appeal at the extension-of-time stage.

Reasoning

The respondent argued the intended appeal would not assist the applicants because they had not complied with the Co-operative Act. The court held that such an argument would require examining the merits of the intended appeal, which was unnecessary at that stage.

p. 2

Legal principles established

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  • An appeal may be admitted out of time where the appellant shows good and sufficient cause for not filing the appeal in time, under the proviso to Section 79G of the Civil Procedure Act.

Court orders

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  1. 1.The Applicants are granted leave to file their appeal within 30 days from the date of the ruling
  2. 2.Stay of taxation of the Respondent's bill of costs pending the hearing and determination of the said appeal
  3. 3.If the Applicants fail to file the appeal within 30 days, the Respondent shall be at liberty to proceed with the taxation of the bill of costs
  4. 4.The Respondent shall have the costs of this application
On appeal from
Co-operative Tribunal
Nairobi Case No. 1 of 2017
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time to file appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Applicants v Respondent (Notice of Motion dated 4th July 2019)", Case Analysis (2019). Not stated in judgment (Co-operative Tribunal Nairobi Case No. 1 of 2017 referenced). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.