[2000] KECA 196 (KLR)
The court exercised its unfettered discretion under Rule 4 of the Court of Appeal Rules to grant the applicant an extension of time to file the Notice of Appeal and Record of Appeal. The decision was based on the fact that the previous appeal was struck out due to procedural defects, which have since been rectified....
Source-derived case information.
- Citation
- [2000] KECA 196 (KLR)
- Parties
- Applicant: Chemigas Limited; Respondent: BOC Kenya Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 136 of ??
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- Application granted. Extension of time to file Notice of Appeal and Record of Appeal allowed.
- Legal Topics
- Extension of Time, Appeals Process, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chemigas Limited
Applicant
BOC Kenya Limited
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file and serve the Notice of Appeal and Record of Appeal.
- 2 Whether the court's discretion should be exercised in favour of the applicant given the rectification of previous procedural defects.
Ratio Decidendi
The court exercised its unfettered discretion under Rule 4 of the Court of Appeal Rules to grant the applicant an extension of time to file the Notice of Appeal and Record of Appeal. The decision was based on the fact that the previous appeal was struck out due to procedural defects, which have since been rectified. The absence of opposition from the respondent and the rectification of the defects satisfied the court that this was a proper case for the exercise of its discretion in favour of the applicant. The court further ordered that the appeal be heard on a priority basis and awarded costs to the respondent.
Court Disposition
Application granted. Extension of time to file Notice of Appeal and Record of Appeal allowed.
Orders
- Applicant to file Notice of Appeal within 7 days from the date of the ruling.
- Applicant to file Record of Appeal within 21 days from the date of the ruling.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: O'KUBASU J.A (IN CHAMBERS)
CIVIL APPLICATION NO. NAI 136 OF 2000
BETWEEN
CHEMIGAS LIMITED ....................................................................................................................................... APPLICANT
AND
BOC KENYA LIMITED ................................................................................................................................ RESPONDENT
(An application for extension of time to file and serve
the Notice of Appeal and record of Appeal in an
intended Appeal from a Ruling and Order, of the High
Court of Kenya at Nairobi (Gacheche, Commissioner of
Assize) dated 15th December, 1999
in
H.C.C.C NO. 935 of 1999)
Originally 1969 of 1995
****************
R U L I N G
This is a Notice of Motion brought under Rule 4 of the Court of Appeal Rules. The applicant is seeking extension of time in which to file Notice of Appeal and Record of Appeal. The application is necessitated by the fact that an earlier appeal was struck out due to procedural defects in that Rules 13(2) and 85(1) (f) of this Court's Rules had not been strictly complied with. These defects have now been rectified and hence, the applicant wishes now to come to court afresh. This application is not opposed.
In view of the foregoing, I am satisfied that this is a proper case in which the unfettered discretion of this Court should be exercised in favour of the applicant. Hence this application is granted and the applicant is now to file Notice of Appeal within 7 days from today and to file Record of Appeal within 21 days from today. It is also ordered that the appeal be heard on priority basis.
As regards costs these will be awarded to the respondent.
Delivered and dated at Nairobi this 30th day of May, 2000.
E. O. O'KUBASU
............. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR