[2001] KECA 193 (KLR)
The court found that the applicants failed to comply with the mandatory requirement to serve the record of appeal within seven days after lodgement as stipulated by rule 87 of the Court of Appeal Rules. Furthermore, the applicants did not provide any explanation for the delay between the purported service of the...
Source-derived case information.
- Citation
- [2001] KECA 193 (KLR)
- Parties
- Applicant: Edwin Otieno Ocholla; Applicant: PAA Products Limited; Applicant: Fishermans Products Limited; Respondent: Madhir Construction Limited; Respondent: Equator Bottlers Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 163 of 2001
- Procedural Posture
- Civil Appeal Application / Application for Extension of Time to Serve Record of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Service of Record of Appeal, Court of Appeal Rules, Exercise of Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Otieno Ocholla
Applicant
PAA Products Limited
Applicant
Fishermans Products Limited
Applicant
Madhir Construction Limited
Respondent
Equator Bottlers Limited
Respondent
Procedural Posture
Civil Appeal Application / Application for Extension of Time to Serve Record of Appeal
Legal Issues
- 1 Whether the applicants have provided sufficient explanation for the delay in serving the record of appeal out of time.
- 2 Whether the court should exercise its discretion to extend time for service of the record of appeal under rule 4 of the Court of Appeal Rules.
Ratio Decidendi
The court found that the applicants failed to comply with the mandatory requirement to serve the record of appeal within seven days after lodgement as stipulated by rule 87 of the Court of Appeal Rules. Furthermore, the applicants did not provide any explanation for the delay between the purported service of the record of appeal and the filing of the application for extension of time. The absence of an explanation for the delay is fatal to the application, as it disentitles the applicants to the exercise of the court's discretion under rule 4. Consequently, the application for extension of time was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to extend time is dismissed with costs.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU CORAM: KEIWUA, J.A. (IN CHAMBERS) CIVIL APPEAL (APPLICATION) NO. 163 OF 2001 BETWEEN
EDWIN OTIENO OCHOLLA PAA PRODUCTS LIMITED FISHERMANS PRODUCTS LIMITED ....................... APPLICANTS AND MADHIR CONSTRUCTION LIMITED ................... 1ST RESPONDENT EQUATOR BOTTLERS LIMITED ...................... 2ND RESPONDENT
(Application for extension of time to serve Record of Appeal out of time in an intended Appeal from the ruling and order of the High Court of Kenya at Kisumu (Birech, Commissioner of Assize) dated the 6th day of February, 2001 in H.C.C.C. NO. 181 OF 2000) ******************* R U L I N G
This is an application for extension of time within which to serve a record of appeal out of time. The decision to be appealed from was delivered on February 6, 2001. The record of appeal was filed on June 7, 2001 and served on the respondent on August 8, 2001 while this application for extension of time was not filed in Court until October 31, 2001. According to rule 87 of the Court of Appeal Rules a copy of a record of appeal must be served on a respondent within seven days after lodgement of the same in Court. This provision has not been observed by the applicant. There is also quite inordinate delay from August 8, 2001 when the record of appeal was purportedly served and the time this application was brought to Court on October 31, 2001.
What is more is that the delay in bringing the application has not at all been explained by the applicant. That failure disentitles an applicant to the exercise of the Court's discretion under rule 4 of the Rules. Accordingly the application to extend time is dismissed with costs.
Dated and delivered at Kisumu this 23rd day of November, 2001.
M. OLE KEIWUA ............... JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR