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Equity Bank Limited & another v Chege (Civil Appeal 32 of 2019) [2022] KEHC 15416 (KLR) (Commercial and Tax) (11 November 2022) (Ruling)
Neutral citation:
[2022] KEHC 15416 (KLR)
Republic of Kenya
Civil Appeal 32 of 2019
DAS Majanja, J
November 11, 2022
Between
Equity Bank Limited
1st Appellant
Antique Auctioneers
2nd Appellant
and
Mary Muthoni Chege
Respondent
(Being an appeal from the Ruling and Order of Hon. G. Mmasi, SPM dated 15th August 2019 at the Magistrates Court at Nairobi, Milimani in CMCC No. 42 of 2019)
Ruling
1.This ruling is in respect of the preliminary objection raised by the respondent dated October 26, 2022. It is ground on the fact that the appeal is filed outside the time prescribed and without leave. The facts upon which it grounded are uncontested.
2.The order appealed from was made on August 15, 2019 while the memorandum of appeal was filed on October 8, 2019. Section 79G of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) provides as follows:79G.Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
3.The memorandum of appeal, which constitutes the appeal under Order 42 rule 1 of the Civil Procedure Rules, ought to have been filed on September 15, 2021 unless the delay was condoned by the court following an application for extension of time. This appeal having been filed out of time and without leave is incompetent and is therefore struck out.
4.The appellants shall pay costs of Kshs 20,000.00 to the respondent.
SIGNED AT NAIROBID. S. MAJANJAJUDGEDATED and DELIVERED at NAIROBI this 11th day of NOVEMBER 2022.A. MABEYAJUDGECourt Assistant: Mr Michael Onyango.Mr Situma instructed by Muriu, Mungai and Company Advocates LLP for the Appellant.Mr Opole instructed by Mayende, Busiega and Company Advocates for the Respondent.
