[1999] KECA 96 (KLR)
The Court of Appeal held that the applicant, having elected to apply for review of the High Court decision, was bound by that choice and could not subsequently seek an extension of time to file an appeal. The Court found no error in the single judge's reasoning and dismissed the reference, confirming that the...
Source-derived case information.
- Citation
- [1999] KECA 96 (KLR)
- Parties
- Applicant: Gharib Mohamed Gharib; Respondent: Sulekha Mohamed Naaman
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 4 of 1997
- Procedural Posture
- Civil Application / Reference to Full Court From Single Judge Decision on Extension of Time
- Outcome
- Reference dismissed with costs to the respondent.
- Legal Topics
- Extension of Time, Review Election, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gharib Mohamed Gharib
Applicant
Sulekha Mohamed Naaman
Respondent
Procedural Posture
Civil Application / Reference to Full Court From Single Judge Decision on Extension of Time
Legal Issues
- 1 Whether the applicant, having applied for review, was precluded from seeking extension of time to appeal.
- 2 Whether the single judge erred in refusing extension of time to file an appeal.
Ratio Decidendi
The Court of Appeal held that the applicant, having elected to apply for review of the High Court decision, was bound by that choice and could not subsequently seek an extension of time to file an appeal. The Court found no error in the single judge's reasoning and dismissed the reference, confirming that the doctrine of election precluded the applicant from pursuing both remedies in respect of the same decision.
Court Disposition
Reference dismissed with costs to the respondent.
Orders
- The reference is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT MOMBASA (CORAM: KWACH, SHAH & OWUOR JJ.A) CIVIL APPLICATION NO. NAI. 4 OF 1999 BETWEEN
GHARIB MOHAMED GHARIB.............................APPLICANT AND SULEKHA MOHAMED NAAMAN.............................RESPONDENT
(An application to file appeal out of time in an intended appeal from a ruling of the High Court of Kenya at Mombasa at (Mr. Justice Waki), dated 23/7/98 in H.C.C.C. NO. 2 OF 1998) ***************** RULING OF THE COURT
This is a reference to full court from the decision of Omolo JA sitting as a single judge of this Court by which he rejected the applicant's application for extension of time to file an appeal.
There is no basis upon which we can say that the single judge was wrong in taking the view that by applying for review the applicant had made his election and was bound by it. In the circumstances we find no merit in this reference and it is accordingly dismissed with costs to the respondent.
Dated and delivered at Mombasa this 27th day of January, 1999.
R. O. KWACH .............. JUDGE OF APPEAL
A. B. SHAH ............... JUDGE OF APPEAL
E. OWUOR ............ JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR.