[2010] KEHC 1659 (KLR)
The court held that, although Section 79G of the Civil Procedure Act requires appeals to be filed within 30 days, the computation of this period must take into account the exclusion of the court vacation period as stipulated under Order XLIX Rule 3A of the Civil Procedure Rules. In this case, the period between 21st...
Source-derived case information.
- Citation
- [2010] KEHC 1659 (KLR)
- Parties
- Appellant: DWA Estate Limited; Respondent: Fredrick Musyoka Mulei
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 33 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Appeal Timelines, Computation of Time, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
DWA Estate Limited
Appellant
Fredrick Musyoka Mulei
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal was filed out of time without leave of the court.
- 2 Whether the computation of time for filing the appeal excluded the court vacation period as per the Civil Procedure Rules.
Ratio Decidendi
The court held that, although Section 79G of the Civil Procedure Act requires appeals to be filed within 30 days, the computation of this period must take into account the exclusion of the court vacation period as stipulated under Order XLIX Rule 3A of the Civil Procedure Rules. In this case, the period between 21st December and 6th January was properly excluded from the computation, and the days from 15th to 20th December 2004 and from 7th to 21st January 2005 were counted, totaling 20 days. As a result, the appeal was filed within the prescribed 30-day period, and there was no basis for striking out the appeal for being out of time.
Court Disposition
application dismissed with costs
Orders
- The respondent's application to strike out the appeal is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 33 of 2005
DWA ESTATE LIMITED……………………………...APPELLANT
VERSUS
FREDRICK MUSYOKA MULEI…………………...RESPONDENT
RULING
1. Frederick Musyoka Mulei who is the respondent to this appeal has moved this court under Section 3A and Section 79G of the Civil Procedure Act seeking to have the appeal filed on 21st January, 2005 struck out with costs on the grounds that the appeal was filed out of time without leave of the court. It is not disputed that judgment subject of the appeal was delivered on 14th December, 2004 and that the appeal was filed on 21st January, 2005.
2. Under Order XLIX Rule 3A of the Civil Procedure Rules, except where otherwise directed by a judge, the period between the 21st day of December in any year and the 6th day of January, in the year next following, both days inclusive, are excluded from any computation of time for the amending, delivering and filing of any pleading or the doing of any other act.
3. In this case, therefore, the computation of time runs from 15th December, to 20th December 2004 (6 days) and then 7th January, to 21st January 2005 (14 days).Although Section 79G of the Civil Procedure Act provides for the filing of an appeal within 30 days, the computation of that time must be done in accordance with Order XLIX Rule 3A of the Civil Procedure Rules.Therefore, it is evident that the appellant filed his appeal within 30 days and therefore the appeal was filed in accordance with Section 79G of the Civil Procedure Act.
4. Accordingly, I find no substance in the respondent’s application and dismiss the same with costs.
Dated and delivered this 9th day of June, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Advocate for the appellant absent
Mithika H/B for Kaburu for the applicant/respondent
Eric - Court clerk