[2000] KECA 167 (KLR)
The court found that the applicant had provided reasonable grounds for his failure to file and serve the notice of appeal within the prescribed time, specifically that he was not notified of the date of delivery of the ruling and was absent when it was delivered. The respondent did not contest these facts....
Source-derived case information.
- Citation
- [2000] KECA 167 (KLR)
- Parties
- Applicant: Joseph Owotsi Walwanga; Respondent: Kenya Commercial Bank Ltd.; Respondent: Thomas Changilwa Muluhya
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 371 of 1999
- Procedural Posture
- Miscellaneous Application / Application for Extension of Time to File Notice and Memorandum of Appeal
- Outcome
- Application allowed. Time extended for filing and serving notice of appeal and memorandum and record of appeal.
- Legal Topics
- Extension of Time, Appeals Process, Notice of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Owotsi Walwanga
Applicant
Kenya Commercial Bank Ltd.
Respondent
Thomas Changilwa Muluhya
Respondent
Procedural Posture
Miscellaneous Application / Application for Extension of Time to File Notice and Memorandum of Appeal
Legal Issues
- 1 Whether the applicant has shown reasonable grounds for failing to file and serve a notice of appeal within the prescribed time.
- 2 Whether the court should exercise its discretion to extend time for filing and serving the notice and memorandum of appeal.
Ratio Decidendi
The court found that the applicant had provided reasonable grounds for his failure to file and serve the notice of appeal within the prescribed time, specifically that he was not notified of the date of delivery of the ruling and was absent when it was delivered. The respondent did not contest these facts. Exercising its discretion under rule 4 of the Court of Appeal Rules, the court granted the extension sought, allowing the applicant 10 days from the date of the ruling to file and serve the notice of appeal, and a further 30 days from the date of filing the notice to file the memorandum and record of appeal. Costs were ordered to be in the intended appeal.
Court Disposition
Application allowed. Time extended for filing and serving notice of appeal and memorandum and record of appeal.
Orders
- Time to file and serve notice of appeal extended by 10 days from the date of this ruling.
- Time to file memorandum and record of appeal extended by 30 days from the date of filing the notice of appeal.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
COURT OF APPEAL AT KISUMU
CIVIL MISC APPL 371 OF 99
CORAM: BOSIRE, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI 371 OF 1999
BETWEEN JOSEPH OWOTSI WALWANGA ........................ APPLICANT
AND
KENYA COMMERCIAL BANK LTD.
THOMAS CHANGILWA MULUHYA ...................... RESPONDENTS
(Application for extension of time to lodge notice and
memorandum of appeal out of time from the ruling of
the High Court of Kenya at Kakamega (Tanui J) dated
18th January, 1999
in
H.C.MISC. A. 32 OF 1996)
****************
R U L I N G
1. In this application, the applicant Joseph Owotsi Walwanga, seeks an order extending the time within which to file and serve a Notice of Appeal and thereafter a Record of Appeal.
The applicant contends that he could not file the notice of appeal timeously because on the date the ruling of the superior court, dated 18th January, 1999, was delivered he was not in court and he had not been given any prior notice that it would be delivered on that day. Mr Owinyi for both the respondents, concedes that the applicant was absent on the date of the ruling and cannot possibly controvert his assertion that he was not notified of the date of the ruling.
2. In the circumstances, and on the evidence before me, I am satisfied that the applicant has shown reasonable grounds for failing to file and serve a notice of appeal within the prescribed time in our rules, and in exercise of my discretion under rule 4 of the rules and extend the time within which to file and serve a notice of appeal by 10 days from the date hereof, and the time within which to file a memorandum and record of appeal by a further 30 days from the date of filing the notice of appeal. The costs of this application to be in the intended appeal.
Dated and delivered at Kisumu this 23rd day of March, 2000.
S. E. O. BOSIRE
---------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR