[1998] KECA 101 (KLR)
The court found that the motion for extension of time was lodged within a reasonable period after the previous appeal was struck out. There was no opposition from the respondent, and no evidence of prejudice was presented. The absence of the applicants' counsel was noted but did not affect the determination since...
Source-derived case information.
- Citation
- [1998] KECA 101 (KLR)
- Parties
- Applicant: Bata Shoe Company Limited; Applicant: Aloice Ojuke; Respondent: Lincolin Onchoka Nyabuto
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 260 of 1998
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time and Stay of Execution
- Outcome
- Application for extension of time granted.
- Legal Topics
- Extension of Time, Appeals Process, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bata Shoe Company Limited
Applicant
Aloice Ojuke
Applicant
Lincolin Onchoka Nyabuto
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time and Stay of Execution
Legal Issues
- 1 Whether the applicants should be granted extension of time to lodge and serve the notice and record of appeal out of time.
- 2 Whether an order of stay of execution should be granted pending appeal.
Ratio Decidendi
The court found that the motion for extension of time was lodged within a reasonable period after the previous appeal was struck out. There was no opposition from the respondent, and no evidence of prejudice was presented. The absence of the applicants' counsel was noted but did not affect the determination since the respondent did not oppose the application. The court exercised its discretion to grant the extension of time, subject to specific timelines for filing and serving the notice and record of appeal, and awarded costs of the application to the respondent.
Court Disposition
Application for extension of time granted.
Orders
- The notice of appeal must be filed and served within seven days of the date hereof.
- The record of appeal must be filed within twenty-one days of the date hereof.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU CORAM: OMOLO J.A (IN CHAMBERS) CIVIL APPLICATION NO. NAI 260 OF 1998 BETWEEN
BATA SHOE COMPANY LIMITED.........................1ST APPLICANT ALOICE OJUKE...................................................2ND APPLICANT AND LINCOLIN ONCHOKA NYABUTO.............................RESPONDENT
(In the matter of an application for extension of time to lodge and serve both notice and record of appeal and also an order of stay of execution of the decree of the High Court of Kenya at Kisii (Mr. Justice Mbaluto) dated 4th October, 1995, in H.C.C.C. NO. 599 OF 1994) ******************** RULING
The applicant's previous appeal was struck out as being incompetent on the 18th June, 1998. The present motion for the extention of time to lodge a notice of appeal and the record of appeal out of time was lodged on the 10th July, 1998. That was a reasonable time. Though counsel for the applicant is absent for unexplained reason, Mr. Kirenga for the respondent does not oppose the motion. Accordingly I grant leave to the applicant on the following terms: 1. The notice of appeal must be filed and served within seven days of the date hereof.
2. The record of appeal itself must be filed within twenty one (21) days of the date hereof.
3. The applicant shall pay to the respondent the costs of this application in any event.
Dated and delivered at Kisumu this 25th day of November, 1998 at 9. 20 a.m.
R. S. C. OMOLO ....................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.