[2001] KECA 346 (KLR)
The Court found that the appeal was filed out of time and without the necessary leave of the court. The issuance of a second certificate of delay, after the proceedings and judgment had already been made available and a prior certificate issued, did not cure the procedural defect. The concession by the appellant's...
Source-derived case information.
- Citation
- [2001] KECA 346 (KLR)
- Parties
- Appellant: Industrial & Commercial Development Corporation; Respondent: Sum Model Industries Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 268 of 2000
- Procedural Posture
- Civil Appeal / Motion to Strike Out Appeal
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Out of Time, Leave of Court, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Industrial & Commercial Development Corporation
Appellant
Sum Model Industries Limited
Respondent
Procedural Posture
Civil Appeal / Motion to Strike Out Appeal
Legal Issues
- 1 Whether the appeal was lodged out of time without leave of the court.
- 2 Whether the issuance of a second certificate of delay could cure the defect of late filing.
Ratio Decidendi
The Court found that the appeal was filed out of time and without the necessary leave of the court. The issuance of a second certificate of delay, after the proceedings and judgment had already been made available and a prior certificate issued, did not cure the procedural defect. The concession by the appellant's advocate that the second certificate was issued in error and his lack of knowledge of the earlier certificate did not alter the fact that the appeal was incompetent. The Court therefore allowed the motion to strike out the appeal and awarded costs to the applicant.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out with costs to the applicant.
- The costs of the motion are awarded to the applicant.
Full Case Text
Judgment text and source record
15 paragraphs
IN THE COURT OF APPEAL AT NAIROBI CORAM: OMOLO, SHAH & O'KUBASU, JJ.A. CIVIL APPEAL NO. 268 OF 2000 BETWEEN
INDUSTRIAL & COMMERCIAL DEVELOPMENT CORPORATION ............. APPELLANT
AND
SUM MODEL INDUSTRIES LIMITED ............................................................. RESPONDENT
(An appeal from the judgment of the High Court of Kenya at Nairobi (Mbogholi J) dated 16th February, 2000
in
H.C.C.C. NO. 3389 OF 1994) ******************
RULING OF THE COURT
Mr K'Owade, in his usual frankness, concedes that the appeal was lodged out of time without leave. Mr K'Owade came into the picture much later and by the time he came in a certificate of delay had already been issued by a deputy registrar showing that proceedings and judgment had been available and had been issued to the advocate who had acted before Mr K'Owade came in. When Mr K'Owade came in, another certificate was issued to him. He readily concedes that certificate was issued in error and we agree with him that he was unaware of the existence of the earlier certificate. The appeal, however, is incompetent, it having been filed out of time and without the leave of the court. We allow the motion to strike out the appeal and we strike out the appeal with costs thereof and the costs of the motion to the applicant.
Dated and delivered at Nairobi this 9th day of July, 2001.
R. S. C. OMOLO --------------- JUDGE OF APPEAL
A. B. SHAH --------------- JUDGE OF APPEAL
E. O. O'KUBASU --------------- JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR