[2021] KECA 277 (KLR)
The court found that the applicant had served a notice of withdrawal of its application for extension of time to file and serve the notice of appeal. Despite a typographical error in the case number and year on the notice of withdrawal, the court was satisfied that the notice referred to the present application, as...
Source-derived case information.
- Citation
- [2021] KECA 277 (KLR)
- Parties
- Applicant: Baobab Beach Resort Mombasa Ltd t/a Baobab Beach Resort; Respondent: Michael Waihenya
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 37 of 2020
- Procedural Posture
- Extension of Time Application / Ruling on Withdrawal of Application
- Outcome
- Application marked as withdrawn with no order as to costs.
- Judges
- JW Lessit
- Legal Topics
- Extension of Time, Notice of Appeal, Withdrawal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Baobab Beach Resort Mombasa Ltd t/a Baobab Beach Resort
Applicant
Michael Waihenya
Respondent
Procedural Posture
Extension of Time Application / Ruling on Withdrawal of Application
Legal Issues
- 1 Whether the court should grant an extension of time to file and serve the notice of appeal out of time.
- 2 Whether the notice of motion application should be marked as withdrawn given the notice of withdrawal filed by the applicant.
Ratio Decidendi
The court found that the applicant had served a notice of withdrawal of its application for extension of time to file and serve the notice of appeal. Despite a typographical error in the case number and year on the notice of withdrawal, the court was satisfied that the notice referred to the present application, as the parties, advocates, and substance of the application were identical. Accordingly, the court exercised its discretion under Rule 96 of the Court of Appeal Rules to mark the application as withdrawn, with no orders as to costs. The withdrawal rendered the substantive application moot, and no further orders were necessary.
Court Disposition
Application marked as withdrawn with no order as to costs.
Orders
- The Notice of Motion application dated 28th May 2020 is marked as withdrawn under Rule 96 of the Court of Appeal Rules.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
Baobab Beach Resort Mombasa Ltd t/a Baobab Beach Resort v Waihenya (Civil Application 37 of 2020) [2021] KECA 277 (KLR) (3 December 2021) (Ruling)
Neutral citation number: [2021] KECA 277 (KLR)
Republic of Kenya
In the Court of Appeal at Malindi
Civil Application 37 of 2020
JW Lessit, JA
December 3, 2021
Between
Baobab Beach Resort Mombasa Ltd t/a Baobab Beach Resort
Applicant
and
Michael Waihenya
Respondent
(An application for extension of time to file and serve the Notice of Appeal, out of time in an intended Appeal from the judgement of the High Court of Kenya at Mombasa (P.J Otieno) delivered on the 8th day of May 2020 in HCC Case No. 267 of 2005)
Ruling
1. The application before me for hearing is dated 29th May, 2020. It is brought under Articles 48 & 159 (2) (d) of the Constitution, Section 3A & 3B of the Appellate Jurisdiction Act, Cap 9 & Rules 1 (2), 4, 41 and 42 (1) of the Court of Appeal Rules, 2010. It seeks the following 3 orders:1. That this Honourable Court be pleased to grant an extension of time for the lodging and service of a Notice of appeal against the judgement and Decree of the Honourable Justice P.J Otieno delivered on the 8th day of May 2020 in Mombasa High Court Civil Suit No. 267 of 2005 between Michael Waihenya v Baobab Beach Resort Mombasa Limited t/a Baobab Beach Resort.2. That the Applicant’s Notice of Appeal lodged on 26th May 2020 and served on intended Respondents be deemed to have been filed within time and to be properly on record.3. That the costs of this Application do abide the outcome of the intended appeal.
2. When the application came up for hearing through filed submissions, a Notice of Withdrawal was served upon the court. It is dated 14th October, 2021. It gives notice that the Applicant in this case has withdrawn its Notice of Motion dated 29th May 2020 with no order as to costs. I noted that the case number in the notice is Civil Application No. E037 of 2021, while the instant case is Civil Application No. 37 of 2020. The parties and their advocates as per the Notice and the case file are the same, and so is the date and nature of the application being withdrawn. I will take it that the error on the year the case was filed as per the Notice is a typographical error.
3. Accordingly, I mark the Notice of Motion application dated 28th May 2020 withdrawn under Rule 96 of the Court of Appeal Rules with no orders as to costs.
DATED AND DELIVERED AT MOMBASA THIS 3RD DAY OF DECEMBER, 2021. J. LESIIT…………………….……..JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR