Case ID:169502

PN Mashru Limited v Neo Makupa Garage Limited

[2021] eKLR

Case Metadata

Case Number:

Mombasa Civil Application 51 of 2020

Parties:

PN Mashru Limited v Neo Makupa Garage Limited

Date Delivered:

29 Jan 2021

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Fatuma sichale

Citation:

PN Mashru Limited v Neo Makupa Garage Limited

[2021] eKLR

Case History:

Being an application for enlargement of time to file and serve the Notice of Appeal from the judgment of the High Court of Kenya at Mombasa (Chepkwony,J.) dated 24th September, 2019in HCCA NO. 45 OF 2019

Court Division:

Civil

County:

Nairobi

History Docket No:

HCCA 45 of 2019

History Judges:

Dorah O. Chepkwony

History County:

Mombasa

Case Outcome:

Motion allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NAIROBI

[CORAM: SICHALE, J.A. IN CHAMBERS]

MOMBASA CIVIL APPLICATION NO. 51 OF 2020

BETWEEN

P.N. MASHRU LIMITED........................................................................................APPLICANT

AND

NEO MAKUPA GARAGE LIMITED................................................................RESPONDENT

(Being an application for enlargement of time to file and serve the Notice of Appeal from the

judgment of the High Court of Kenya at Mombasa (Chepkwony,J.)

dated 24

th

September, 2019

in

HCCA NO. 45 OF 2019)

RULING OF THE COURT

************************

Before me is an application dated

16

th

July, 2020

filed by the applicant,

P.N. Mashru Limited

seeking, in the main, the following order under rule 4 of

the Court of appeal Rules, 2010:

“That this Honourable Court be pleased to enlarge time within which the applicant can file their Notice of Appeal against the judgment delivered on 24

th

September, 2019 at the High Court at Mombasa by Honourable Lady Justice Chepkwony in HCCA No. 45 OF 2013”.

The grounds in support of the application as appearing on the face of the motion and reiterated in the supporting affidavit of the applicant’s advocate

James Kituku Munguti

, dated

16

th

July, 2020

are that: judgment was to be delivered on

4

th

September, 2019

but the same was not ready and the court indicated that it would be delivered on notice; that the applicant wrote to the Court on

27

th

September, 2019

enquiring on the status of the judgment; that the impugned judgment was delivered on

24

th

September, 2019

without notice and the applicant only became aware of the same when it received the respondent’s draft bill of costs vide a letter dated

4

th

February, 2020

; that the scaling down of the Court Registry operations in a bid to curb the spread of Covid 19 hampered the applicant’s efforts to obtain a copy of the judgment and typed proceedings; that the delay is not inordinate and the respondent will suffer no prejudice if the orders sought are granted.

The respondent opposed the application vide a replying affidavit sworn on

17

th

September, 2020.

In their filed submissions dated

3

rd

November, 2020

, the respondent conceded that the court did not give notice of delivery of judgment.

It contended that when the respondent’s clerk stumbled on the judgment, it informed the applicant’s counsel vide its letter of

4

th

February, 2020

and which

letter was received by the applicant’s counsel on

12

th

February, 2020.

The respondent maintained that the applicant had not explained the delay in filing the instant application after discovering that judgment in the matter had been delivered. It was also alleged that the applicant had not requested or served typed proceedings pursuant to

Rule 77

and

82

of this Court’s Rules nor had it sought extension of time to deal with the procedural lapses which would result in the record of appeal being out of time. Lastly, it was pointed out that the applicant had not placed any material to enable the court determine the possibility of success of its intended appeal.

I have considered the application, the respondent’s submissions and the law. The grant of orders under

Rule 4,

though free and unfettered, is to be exercised judiciously and not capriciously. The relevant factors to be considered in an application for extension of time is the length of delay; the reason for the delay; the chances of the appeal succeeding and the degree of prejudice (if any)

likely to be caused to the respondent if extensions is granted. See

Leo Sila Mutiso vs. Hellen Wangarir Mwangi, Civil Application No. Nai 255 of 1997)

.

In my view, the beginning point which is uncontested is that the judgment sought to be challenged on appeal by the applicant was delivered in the absence of both the respondent and the applicant. The respondent opposed the motion as it is of the view that it informed the applicant of the judgment vide its letter of

4

th

February, 2020

and which letter was received by the applicant’s counsel on

12

th

February, 2020

. On the other hand, the applicant’s counsel had explained the delay in moving this Court due to the scaling down of the operations of the registry on account of the Covid 19 pandemic which hit this country from the beginning of

March, 2020

. In my view, this explanation is plausible. It is also regretted that the judgment, the subject of the intended appeal was delivered without notice. It is for these reasons that I exercise my discretion in favour of

the applicant.

Accordingly, I allow the motion dated

16

th

July, 2020.

Costs shall be in the intended appeal.

It is so ordered.

Dated and Delivered at Nairobi this 29

th

Day of January, 2020.

F. SICHALE

...................................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR