Case ID:170437

Anthony Mbwabi Khayimba v Laxmanbhai Construction Limited [2021] eKLR

Case Metadata

Case Number:

Civil Application 366 of 2019

Parties:

Anthony Mbwabi Khayimba v Laxmanbhai Construction Limited

Date Delivered:

19 Feb 2021

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Milton Stephen Asike-Makhandia, Sankale ole Kantai, Fatuma sichale

Citation:

Anthony Mbwabi Khayimba v Laxmanbhai Construction Limited [2021] eKLR

Case History:

(An application to strike out the Notice of Appeal filed by the respondent on 8th November, 2018 against the judgment of the High Court of Kenya at Nairobi (L. Njuguna, J) dated 25th October, 2019 in CIVIL CASE NO. 223 OF 2016)

Court Division:

Civil

County:

Nairobi

History Docket No:

CIVIL CASE NO. 223 OF 2016)

History Judges:

Lucy Mwihaki Njuguna

History County:

Nairobi

Case Outcome:

Motion dismissed

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: ASIKE-MAKHANDIA, SICHALE & KANTAI, JJ.A]

CIVIL APPLICATION NO. 366 OF 2019

BETWEEN

ANTHONY MBWABI KHAYIMBA...............................................................................APPLICANT

AND

LAXMANBHAI CONSTRUCTION LIMITED........................................................RESPONDENT

(An application to strike out the Notice of Appeal filed by the respondent on 8

th

November, 2018

against the judgment of the High Court of Kenya at Nairobi (L. Njuguna, J)

dated 25th October, 2019

in

CIVIL CASE NO. 223 OF 2016)

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

RULING OF THE COURT

The applicant,

Anthony Mbwabi Khayimba

filed a Notice of Motion dated

20

th

November, 2019

predicated upon Rules 82, 83 and 84 of this Court’s Rules (the Rules). In the main, the applicant seeks to strike out the respondent’s (

Laxmanbhai Construction Limited

) Notice of Appeal dated

7

th

November, 2019

and filed in court on

8

th

November, 2019

expressing its intent to file an appeal against the judgment of

Njuguna, J

delivered on

25

th

October, 2018

.

In the applicant’s supporting affidavit sworn on

20

th

November, 2019

, he deposed that the respondent has failed to file an appeal within sixty (60) days from

25

th

October, 2018

(the date of the judgment) as provided by Rule 82 of the Rules; further that the said Notice of Appeal was filed for the sole purpose of enabling the applicant obtain an order of stay and that being paraplegic and confined to a wheel chair, he needs to access the fruits of his judgment which will enable him seek further medical treatment abroad.

In his written submissions dated

17

th

September, 2020

, the applicant reiterated that the respondent has failed to file its appeal within sixty (60) days from the date of judgment as required by Rule (82(1)) and that Rule 82(1) cannot avail the respondent as it did not serve upon the applicant its request for proceedings (if at all).

In opposition to the motion,

Charles Mochoge

, the Legal Officer of the respondent swore an affidavit dated

27

th

October, 2020

. He deposed that the respondent filed its Notice of Appeal dated

7

th

November, 2018

, together with the letter bespeaking the proceedings on

8

th

November, 2018

; that it served the applicant’s counsel with the Notice of Appeal and the letter bespeaking the proceedings on

8

th

November, 2018;

that the respondent has made several follow ups by way of letters and the proceedings have not been availed to the respondent by the court. On

9

th

November, 2020,

the motion came up before us for consideration

“

on written submissions, on no appearance of counsel

”.

Firstly, we note that the respondent’s letter dated

7

th

November, 2018

which was annexed as exhibit “

CM-2

” by the respondent, is a letter bespeaking the proceedings. This letter is copied to “

Nyasae & Associates

”, the applicant’s counsel. Further, the letter has the stamp of the firm of

Nyasae & Associates

as having been received on

8

th

November, 2018.

Given the above, it is therefore not true that the respondent’s letter of

7

th

November, 2018

bespeaking the proceedings was not copied to the applicant’s counsel on record then. It is also not true that the applicant’s counsel was not served with the said letter, as the letter has the applicant’s counsel’s office stamp acknowledging receipt of the letter on

8

th

November, 2018

. In our view, the respondent has brought itself within the ambit of Rule 82 (1) of this Court’s Rules as the letter bespeaking the proceedings was copied and served upon the applicant as stipulated under Rule 82 (2).

Given that the respondent took all procedural steps in its application for proceedings for the purpose of filing an appeal, the delay in availing the proceedings having been occasioned by the court, the respondent cannot be faulted for the delay.

We find no merit in the motion. It is hereby dismissed with costs to the

respondent.

Dated and Delivered at Nairobi this 19

th

Day of February, 2021.

ASIKE-MAKHANDIA

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

JUDGE OF APPEAL

F. SICHALE

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

JUDGE OF APPEAL

S. ole KANTAI

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

JUDGE OF APPEAL

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

Signed

DEPUTY REGISTRAR