[1985] KECA 109 (KLR)
The court found that while the applicant was entitled to an adjournment due to late service and insufficient preparation time, he should have anticipated the listing of the matter and made necessary enquiries. The application was in the published cause list, and the applicant's lack of diligence warranted an order...
Source-derived case information.
- Citation
- [1985] KECA 109 (KLR)
- Parties
- Applicant: Ali Masoud Mwakileo; Respondent: A Y A Jiwaji and Jiwanji
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 28 of 1986
- Procedural Posture
- Civil Application / Application for Extension of Time to Serve Notice of Appeal
- Outcome
- Adjournment granted; applicant to pay costs of the day's abortive hearing; main appeal to be re-listed; costs of main appeal adjournment reserved.
- Judges
- ARW Hancox
- Legal Topics
- Extension of Time, Service of Notice, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Masoud Mwakileo
Applicant
A Y A Jiwaji and Jiwanji
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to Serve Notice of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to serve the notice of appeal on the respondent.
- 2 Whether the applicant should bear the costs of the adjournment due to late service and insufficient preparation time.
Ratio Decidendi
The court found that while the applicant was entitled to an adjournment due to late service and insufficient preparation time, he should have anticipated the listing of the matter and made necessary enquiries. The application was in the published cause list, and the applicant's lack of diligence warranted an order for costs in favour of the respondent for the day's abortive hearing. The main appeal was ordered to be taken out of the list and re-listed for the next sessions, with costs for its adjournment reserved until the main appeal is heard.
Court Disposition
Adjournment granted; applicant to pay costs of the day's abortive hearing; main appeal to be re-listed; costs of main appeal adjournment reserved.
Orders
- Adjournment of the application granted.
- Applicant to pay costs of today's abortive hearing to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT Mombasa
(Coram: Hancox, JA (In Chambers)
CIVIL APPLICATION NAI 28 OF 1986 (In the matter of an intended appeal)
BETWEEN
ALI MASOUD MWAKILEO ………………………………..………….. APPLICANT
AND
A Y A JIWAJI AND JIWANJI ………………………………….…….. RESPONDENT
(Application for extension of time to serve a notice of appeal out of time in an intended appeal from a ruling of the High Court of Kenya at Mombasa (Aragon, J) dated November 14, 1985
In
BANKRUPTCY CAUSE NO 3 OF 1985)
_________________
RULING
The substantive point in this application to extend time for serving the notice of appeal on the respondent would appear to be almost on all fours with the point decided by Madan, J A (as he then was), in Civil Application Nai 1 of 1981, Cassam & Anor v Sachanja & Anor, and it might be of help to the counsel to consider that decision.
However, to return to this application for the judgment of this application, which is on the grounds of late service and consequently insufficient time to prepare by Mr Adere, on behalf of the applicant, in my opinion he must have known that this court would be in Mombasa now, and his clerk could have enquired if this matter would be listed. The application was, moreover in the published cause list for Monday July 14, in Mombasa.
In the circumstances I grant the adjournment of the application but I consider the applicant should pay the costs of today’s abortive hearing to the respondent in any event, and I so order.
As regards the main appeal, Civil Appeal 12 of 1986, this was listed for today before the full bench, but it obviously cannot be heard until the application is disposed of Mr Jiwaji has not strenuously opposed the adjournment of either the application or the main appeal. In the circumstances I order that the main appeal be taken out of the list and be re-listed for the next sessions.
As I cannot now forecast the result of the application, it seems to me that it would be unjust to make any order for costs of the adjournment of the main appeal, and I accordingly reserve these until the main appeal is heard. Orders accordingly.
Dated and delivered at Mombasa this17th day of July, 1986.
ARW Hancox
Judge of Appeal
I certify that this is true copy of the original.
DEPUTY REGISTRAR