[1983] KECA 113 (KLR)
The appellant failed to comply with the mandatory procedural requirements for serving the Notice of Appeal and the Memorandum and Record of Appeal within the prescribed time limits. The explanation for the delay, being an omission by the appellant's advocate, did not amount to sufficient cause under rule 4 of the...
Source-derived case information.
- Citation
- [1983] KECA 113 (KLR)
- Parties
- Appellant: Andrew A Apiyo; Respondent: Michael M O Mashere
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 32 of 1982
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Procedural Compliance
- Outcome
- Appeal struck out as incompetent with costs to the respondent.
- Judges
- CB Madan, AA Kneller
- Legal Topics
- Appeal Timelines, Service of Process, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew A Apiyo
Appellant
Michael M O Mashere
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Procedural Compliance
Legal Issues
- 1 Whether the appellant complied with the mandatory rules regarding timely service of the Notice of Appeal and the Memorandum and Record of Appeal.
- 2 Whether sufficient cause was shown to justify extension of time for service and filing of documents.
Ratio Decidendi
The appellant failed to comply with the mandatory procedural requirements for serving the Notice of Appeal and the Memorandum and Record of Appeal within the prescribed time limits. The explanation for the delay, being an omission by the appellant's advocate, did not amount to sufficient cause under rule 4 of the Court of Appeal Rules. As a result, the court declined to grant an extension of time and found the appeal incompetent for want of compliance with the rules. The appeal was accordingly struck out with costs to the respondent.
Court Disposition
Appeal struck out as incompetent with costs to the respondent.
Orders
- The appeal is struck out as incompetent.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
(Coram: Madan and Kneller, JJ A and Chesoni, Ag. J A) CIVIL APPEAL NO. 32 OF 1982)
civ app 32 of 82
BETWEEN
ANDREW A APIYO ………………………..…………… APPELLANT
AND
MICHAEL M O MASHERE …………………………… RESPONDENT
(Appeal from the Ruling of the High Court of Kenya at Eldoret (Mbaya, J) dated 7th May, 1982 in
Civil Case No. 111 of 1976
RULING OF THE COURT
The respondent objects to this appeal being prosecuted on the grounds that he was not served with Notice of Appeal within time which was file on 14th May, 1982 and should have been served within 7 days (rule 76 (1); secondly, the respondent was also not served with the Memorandum of Appeal and the record of Appeal within seven days after lodging it on 14th July, 1982 (rule 87 (1).
Mr Kamau who appears for the appellant concedes that the two aforementioned rules were not compiled with as two documents were served on the respondent as late as 30th October, 1982. There is also a breach of rule 85 (1) (h) as much as certified copy of the order sought to be appealed against is not included in the Record of Appeal. Mr Kamau has applied for extension of time so that Notice of Appeal and the Memorandum of Appeal shall be deemed to have been served within time. He has also applied extension to file the order out of time.
In order to succeed Mr Kamau has to bring himself within rule s4 by showing sufficient cause to explain why the required steps were not taken timeously. He is gallant enough to admit freely that the lapses which occurred happened due to ommision on his part. That is not sufficient cause. We are therefore unable to accede to his request.
The appeal is ordered to be struck out as incompetent, with costs to the respondent. Order accordingly.
Dated at Nakuru this 5th day of October, 1983.
C B MADAN
……………….
JUDGE OF APPEAL
A A KNELLER
………………..
JUDGE OF APPEAL
Z R CHESONI
……………….
AG. JUDGE OF APPEAL