Background
1. Before Court is an application dated 12/7/2023 premised on Section 79G of the Civil Procedure Act, Cap 21 Laws of Kenya and Order 42 Rule 32 of the Civil Procedure Rules, 2010. It seeks leave to file a cross-appeal out of time. The application is supported by an affidavit sworn by RAJNI VE LJI SHAH, the applicant on 12/7/2023.
2. The applicant contends that he was not aware of the principal appeal filed by the appellant until 23/6/2023 when his advocate received documents from the appellant’s advocates. The same were received on the 21/6/2023 and for the first time contained the case number.
3. The applicant points out to this court that the appellant has admitted by way of an affidavit sworn by its advocate on 12th October 2023 that even though the principal appeal was filed on 23rd August 2022, it served the Memorandum of Appeal without the case number (because it had not been issued yet) and informed the applicant about that case number on or about 21st June 2023.
4. The applicant askes that this Court takes judicial notice of court processes and the fact that it is only possible to file a response to a case when the case number is known. This is for identification and follow up purposes by the registry.
5. It is finally the applicant’s contention that the law doesn’t make any provisions prescribing any other aspect governing cross-appeals, particularly the time within which it must be filed. The application is opposed by way of a replying affidavit sworn by BABRA MURITHI on 12th October 2023.
6. The gist of the respondent’s case is that the applicant has not given any good or sufficient cause for the delay in filing the cross appeal. The respondent notes that the present appeal was filed on 23rd August 2022 and served via email on the 29th August 2022 to the respondent’s advocates. That it was discernable that an appeal between Terazzo Enterprises Limited and Rajni Shah had been filed and the applicant did not require a case number to discern this.
Analysis and determination
7. I have carefully considered the pleadings, submissions and evidence presented by the parties in this matter. The issue in contention is whether the Court should allow the filing of a cross appeal by the applicant, out of time.
8. Section 95 of the Civil Procedure Act is instructive of the discretion of this Court in enlarging time for the performance of any act. This discretion is further buttressed under Order 50 rule 6 of the Civil Procedure Rules which provides as follows:
“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
9. Having so found, the question now moves to whether the applicant is deserving of the orders sought. I am cognisant of the parameters for consideration set by the Supreme Court in Nicholas Kiptoo Arap Korir Salat V The Independent Electoral and Boundaries Commission & 7 Others, [2014] eKLR that:
i. “Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
ii. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
iii. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
v. Whether there will be any prejudice suffered by the respondents if the extension is granted;
vi. Whether the application has been brought without undue delay;
vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
viii. The degree of prejudice to the respondent if the application is granted.”
10. It is not contested that the Memorandum of Appeal dated and filed in Court on 23/8/2022 had no case number. The same was served on the applicant on 29/8/2022. The appellant confirms that indeed at the time of service, no number had been generated for the appeal, a situation they refer to as an inadvertence of omission.
11. It is therefore understandable that even though the mention notice of 19th June 2023 indicates the case number, there was an apparent confusion on the applicant’s advocates. In an email dated 20th June 2023 the applicant’s advocates write: we have no record of case HCCOMMA No. E113 of 2022. Terrazo Enterprises Limited V Rajni Shah. Kindly serve us with all the relevant documents.
12. The evidence on record further confirms that it is at this point that the Memorandum of Appeal with the case number was eventually served on the applicant’s advocates on 21st June 2023. The applicant’s advocates notified their client on 23rd June 2023 of the appeal and this application was filed on 12th July 2023, slightly upwards of 2 weeks.
13. I find that in the circumstances the delay in filing this application is inordinate and that the same is explainable.
14. The appellants blame the applicants for not following up with them to confirm the details of the appeal. They also contend that by the names of the parties the applicant should have known what appeal was being referred to. While due diligence was called for on the applicant’s side, it was equally the appellant’s duty to ensure that they served the applicant with a properly numbered appeal.
15. The justification that identical names should be obvious to the applicant is not a plausible excuse. It is well known that a case number is the only unique identifier of a case. There is no way that the respondent would have been expected to file an un-numbered cross appeal in Court.
16. From the totality of the evidence I am of the view that the delay in filing the cross appeal by the applicant was in good faith owing to an apparent confusion caused by the non-numbering of the case number of the Memorandum of Appeal that had been served on the applicant.
17. I have equally scrutinized the notice of cross appeal and it is my view that the same raises issues that ought to be interrogated and for which the applicant is entitled to be heard.
Disposition
18. Accordingly, the application dated 12/7/2023 is allowed as prayed. The costs of the application shall await the outcome of the appeal.
1. Before Court is an application dated 12/7/2023 premised on Section 79G of the Civil Procedure Act, Cap 21 Laws of Kenya and Order 42 Rule 32 of the Civil Procedure Rules, 2010. It seeks leave to file a cross-appeal out of time. The application is supported by an affidavit sworn by RAJNI VE LJI SHAH, the applicant on 12/7/2023.
2. The applicant contends that he was not aware of the principal appeal filed by the appellant until 23/6/2023 when his advocate received documents from the appellant’s advocates. The same were received on the 21/6/2023 and for the first time contained the case number.
3. The applicant points out to this court that the appellant has admitted by way of an affidavit sworn by its advocate on 12th October 2023 that even though the principal appeal was filed on 23rd August 2022, it served the Memorandum of Appeal without the case number (because it had not been issued yet) and informed the applicant about that case number on or about 21st June 2023.
4. The applicant askes that this Court takes judicial notice of court processes and the fact that it is only possible to file a response to a case when the case number is known. This is for identification and follow up purposes by the registry.
5. It is finally the applicant’s contention that the law doesn’t make any provisions prescribing any other aspect governing cross-appeals, particularly the time within which it must be filed. The application is opposed by way of a replying affidavit sworn by BABRA MURITHI on 12th October 2023.
6. The gist of the respondent’s case is that the applicant has not given any good or sufficient cause for the delay in filing the cross appeal. The respondent notes that the present appeal was filed on 23rd August 2022 and served via email on the 29th August 2022 to the respondent’s advocates. That it was discernable that an appeal between Terazzo Enterprises Limited and Rajni Shah had been filed and the applicant did not require a case number to discern this.
Analysis and determination
7. I have carefully considered the pleadings, submissions and evidence presented by the parties in this matter. The issue in contention is whether the Court should allow the filing of a cross appeal by the applicant, out of time.
8. Section 95 of the Civil Procedure Act is instructive of the discretion of this Court in enlarging time for the performance of any act. This discretion is further buttressed under Order 50 rule 6 of the Civil Procedure Rules which provides as follows:
“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
9. Having so found, the question now moves to whether the applicant is deserving of the orders sought. I am cognisant of the parameters for consideration set by the Supreme Court in Nicholas Kiptoo Arap Korir Salat V The Independent Electoral and Boundaries Commission & 7 Others, [2014] eKLR that:
i. “Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
ii. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
iii. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
v. Whether there will be any prejudice suffered by the respondents if the extension is granted;
vi. Whether the application has been brought without undue delay;
vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
viii. The degree of prejudice to the respondent if the application is granted.”
10. It is not contested that the Memorandum of Appeal dated and filed in Court on 23/8/2022 had no case number. The same was served on the applicant on 29/8/2022. The appellant confirms that indeed at the time of service, no number had been generated for the appeal, a situation they refer to as an inadvertence of omission.
11. It is therefore understandable that even though the mention notice of 19th June 2023 indicates the case number, there was an apparent confusion on the applicant’s advocates. In an email dated 20th June 2023 the applicant’s advocates write: we have no record of case HCCOMMA No. E113 of 2022. Terrazo Enterprises Limited V Rajni Shah. Kindly serve us with all the relevant documents.
12. The evidence on record further confirms that it is at this point that the Memorandum of Appeal with the case number was eventually served on the applicant’s advocates on 21st June 2023. The applicant’s advocates notified their client on 23rd June 2023 of the appeal and this application was filed on 12th July 2023, slightly upwards of 2 weeks.
13. I find that in the circumstances the delay in filing this application is inordinate and that the same is explainable.
14. The appellants blame the applicants for not following up with them to confirm the details of the appeal. They also contend that by the names of the parties the applicant should have known what appeal was being referred to. While due diligence was called for on the applicant’s side, it was equally the appellant’s duty to ensure that they served the applicant with a properly numbered appeal.
15. The justification that identical names should be obvious to the applicant is not a plausible excuse. It is well known that a case number is the only unique identifier of a case. There is no way that the respondent would have been expected to file an un-numbered cross appeal in Court.
16. From the totality of the evidence I am of the view that the delay in filing the cross appeal by the applicant was in good faith owing to an apparent confusion caused by the non-numbering of the case number of the Memorandum of Appeal that had been served on the applicant.
17. I have equally scrutinized the notice of cross appeal and it is my view that the same raises issues that ought to be interrogated and for which the applicant is entitled to be heard.
Disposition
18. Accordingly, the application dated 12/7/2023 is allowed as prayed. The costs of the application shall await the outcome of the appeal.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 5TH DAY OF JULY 2024.
F. MUGAMBI
JUDGE