[1999] KECA 13 (KLR)
The Court held that since no valid extension of time was granted for filing the record of appeal, and the only extension granted was for filing the notice of appeal, the record of appeal was filed out of time. The argument that Rule 81 would grant a further 60 days after extension for the notice of appeal was...
Source-derived case information.
- Citation
- [1999] KECA 13 (KLR)
- Parties
- Appellant: Bank fur Arbeit und Wirtschaft A.G.; Respondent: Attorney-General; Respondent: Official Receiver, Ken-Ren Chemicals & Fertilizers Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 157 of 1995
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Competence of Appeal Due to Lateness
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Extension of Time, Filing of Record of Appeal, Incompetent Appeal, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bank fur Arbeit und Wirtschaft A.G.
Appellant
Attorney-General
Respondent
Official Receiver, Ken-Ren Chemicals & Fertilizers Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Competence of Appeal Due to Lateness
Legal Issues
- 1 Whether the appellant had a valid extension of time to file the record of appeal.
- 2 Whether the appeal was filed out of time and thus incompetent.
Ratio Decidendi
The Court held that since no valid extension of time was granted for filing the record of appeal, and the only extension granted was for filing the notice of appeal, the record of appeal was filed out of time. The argument that Rule 81 would grant a further 60 days after extension for the notice of appeal was rejected. The absence of a specific order extending time for the record of appeal rendered the appeal incompetent. Consequently, the appeal was struck out as being out of time.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI Civil Appeal 157 of 1995
BANK FUR ARBEIT UND WIRTSCHAFT A.G..........................................................................APPELLANT
AND
ATTORNEY-GENERAL
OFFICIAL RECEIVER, KEN-REN CHEMICALS & FERTILIZERS LIMITED..........................RESPONDENTS
(Appeal from an order of the High Court of Kenya at Nairobi (Hon. Lady Justice
Aluoch) dated 9th day of July, 1992
IN
H.C.C.C. NO. 5739 OF 1990)
*************************
RULING OF THE COURT
The ruling of the superior court intended to be appealed against was delivered on 9 July 1992. The ruling of this Court on reference from the decision of a single judge of this Court referring extension of time to file a notice of appeal was delivered on 30 June 1995 when an extension of time of five days from that date was granted. No other order for any extension was ordered. Mr Nowrojee very properly concedes that a relief sought but not granted is deemed to have been refused. There is, therefore, no valid extension of time for the filing of the record of appeal. The argument that once time is extended to file a notice of appeal Rule 81 applies and there are further 60 days to file the record is one with which we do not agree. Accordingly in the absence of any valid extension of time for filing the record, it is ex facie out of time and therefore incompetent. The appeal is struck out but with no order as to costs.
Dated and delivered at Nairobi this 8th day of July, 1999.
R.O. KWACH
.........................
JUDGE OF APPEAL
P.K. TUNOI
.........................
JUDGE OF APPEAL
A.A. LAKHA
.........................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.