[2001] KECA 171 (KLR)
The court found that the delay in serving the notice of appeal on the first respondent was only one day and did not amount to inordinate delay. The second and third respondents were properly served, and the appeal is already pending before the court. The court exercised its discretion in favour of the applicant,...
Source-derived case information.
- Citation
- [2001] KECA 171 (KLR)
- Parties
- Applicant: John Njoroge Karua; Respondent: Betty Ngendo Gachie; Respondent: Amosam Builders & Developers Limited; Respondent: Nakuru Municipal Council
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 94 of 2001
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to Serve Notice of Appeal
- Outcome
- application granted
- Legal Topics
- Extension of Time, Service of Notice, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njoroge Karua
Applicant
Betty Ngendo Gachie
Respondent
Amosam Builders & Developers Limited
Respondent
Nakuru Municipal Council
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to Serve Notice of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to serve the notice of appeal on the first respondent.
- 2 Whether a delay of one day in serving the notice of appeal constitutes inordinate delay warranting refusal of the application.
- 3 Whether the respondents would suffer prejudice if the extension is granted.
Ratio Decidendi
The court found that the delay in serving the notice of appeal on the first respondent was only one day and did not amount to inordinate delay. The second and third respondents were properly served, and the appeal is already pending before the court. The court exercised its discretion in favour of the applicant, holding that the respondents would not be prejudiced by the extension. Accordingly, the application for extension of time was granted as prayed, and the notice of appeal served out of time was deemed to have been served in time.
Court Disposition
application granted
Orders
- Extension of time to serve the notice of appeal on the first respondent is granted.
- The notice of appeal served out of time is deemed to have been served in time.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU (CORAM: TUNOI, J.A (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 94 OF 2001 (NAK. 15/2001) BETWEEN
JOHN NJOROGE KARUA .................................... APPLICANT AND BETTY NGENDO GACHIE ................................ 1ST RESPONDENT AMOSAM BUILDERS & DEVELOPERS LIMITED ............... 2ND RESPONDENT NAKURU MUNICIPAL COUNCIL ........................... 3RD RESPONDENT
(Application for extension of time within which to serve Notice of appeal in an appeal against the Judgment and decree of the High Court of Kenya at Nakuru (Mr. Justice Rimita) dated 26th January, 2001 in H.C.C.C NO. 104 OF 1992) R U L I N G
This is an application to extend time within which the Notice of appeal dated 7th February, 2001 in Nakuru H.C.C.C No. 104/92 should be served upon the first respondent and to treat the Notice of appeal that was served outside the prescribed time as having been timeously served. In my view the application ought to be granted. Firstly, the second and third respondents were properly served with the Notice of appeal. Secondly, the delay involved in effecting service upon the first respondent is a single day; and thirdly, an appeal in respect of the dispute between the parties has already been lodged in court and is pending determination.
I do not believe that the delay of one day can earnestly be said to amount to an inordinate delay so as to militate against me exercising my discretion in favour of the appliMcoarneto.ver, I do not believe that the respondents will be prejudiced in any manner if I accede to the application. The application is granted as prayed for in the Notice of motion of 26th February, 2001 and lodged in this Court on 12th March, 2001. The costs of this application shall be in the intended appeal.
Dated at Nakuru this 26th day of September, 2001.
P.K. TUNOI ............... JUDGE OF APPEAL
Leave to file Reference granted.
P.K. TUNOI ............... JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR