[2002] KECA 197 (KLR)
The court found that although the applicant's reason for failing to serve the Notice of Appeal on the second defendant was not adequate, the court was nonetheless inclined to exercise its discretion in favour of the applicant. The overriding consideration was the interest of justice and the fact that the omission...
Source-derived case information.
- Citation
- [2002] KECA 197 (KLR)
- Parties
- Applicant: B.P. (K) Limited; Respondent: Industrial & Commercial Development Corporation (ICDC); Respondent: Stephen K. Sugut
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 425 of 2001
- Procedural Posture
- Civil Application / Application for Extension of Time to Serve Notice and Record of Appeal
- Outcome
- Application allowed. Extension of time granted.
- Legal Topics
- Extension of Time, Service of Process, Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
B.P. (K) Limited
Applicant
Industrial & Commercial Development Corporation (ICDC)
Respondent
Stephen K. Sugut
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to Serve Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to serve the Notice of Appeal on the second defendant.
- 2 Whether the applicant's explanation for failure to serve the second defendant constitutes sufficient cause for extension.
Ratio Decidendi
The court found that although the applicant's reason for failing to serve the Notice of Appeal on the second defendant was not adequate, the court was nonetheless inclined to exercise its discretion in favour of the applicant. The overriding consideration was the interest of justice and the fact that the omission was due to oversight rather than deliberate disregard of the rules. Therefore, the court granted an extension of seven days from the date of the ruling for the applicant to serve the Notice of Appeal on the second defendant.
Court Disposition
Application allowed. Extension of time granted.
Orders
- Time within which to serve a Notice of Appeal on the second defendant is extended by seven days from the date of this ruling.
- No order as to costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAKURU
CORAM: BOSIRE J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI 425 OF 2001 (NKU 41/01) BETWEEN B.P. (K) LIMITED ................................... APPLICANT
AND
INDUSTRIAL & COMMERCIAL
DEVELOPMENT CORPORATION (ICDC)
STEPHEN K. SUGUT ................................. RESPONDENTS
(An application for extension of time to serve notice and record of appeal out of time in an intended appeal from the ruling of the High Court of Kenya at Nakuru (Ondeyo J) dated 28th August, 2000 in ELD. H.C.C.C. NO. 121 OF 1999) ***************** R U L I N G
This is an application under rule 4 of the Court of Appeal Rules for an extension of the time within which to serve a Notice of Appeal on one Stephen K. Sugut who is named as second defendant in Eldoret High Court Civil Case No. 121 of 1999. The applicant unsuccessfully applied for a temporary injunction against Industrial and Commercial Development Corporation named in the aforesaid suit as first defendant.
The application was not served on the second defendant. The applicant was aggrieved and lodged a Notice of Appeal announcing its intention to challenge the decision of the superior court. A copy of the said notice was served on the first defendant but not on the second. The applicant says that it was by oversight that the Notice of Appeal was not served on the second defendant and now requests that I exercise my discretion in its favour and extend the time as prayed.I have considered the matter and although the reason for not serving the second defendant is not adequate, I am minded to exercise my discretion in favour of extending the time as prayed. Accordingly I extend the time within which to serve a Notice of Appeal on the second defendant by seven days from the date hereof. I make no order as to costs. Dated and delivered at Nakuru this 22nd day of February, 2002.
S. E. O. BOSIRE JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR