[2001] KECA 188 (KLR)
The court found that the certificate of delay was valid and unchallenged, showing that the proceedings were ready for collection on 4th April, 2001. Since the appeal was lodged on the same date, it was filed within the prescribed time as per rule 81 of the Court of Appeal Rules. Therefore, the application for...
Source-derived case information.
- Citation
- [2001] KECA 188 (KLR)
- Parties
- Applicant: Kabete Mbuga; Respondent: Nyakangi Nyamache
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 221 of 2001
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time
- Outcome
- Application struck out with costs to the respondent.
- Legal Topics
- Extension of Time, Notice of Appeal, Record of Appeal, 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
Kabete Mbuga
Applicant
Nyakangi Nyamache
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the application for extension of time to serve notice of appeal and lodge record of appeal out of time was necessary in light of the certificate of delay.
- 2 Whether the appeal was filed within the prescribed time under the relevant rules.
Ratio Decidendi
The court found that the certificate of delay was valid and unchallenged, showing that the proceedings were ready for collection on 4th April, 2001. Since the appeal was lodged on the same date, it was filed within the prescribed time as per rule 81 of the Court of Appeal Rules. Therefore, the application for extension of time was unnecessary and misconceived, as there was no need for such an application when the appeal was already properly filed within time.
Court Disposition
Application struck out with costs to the respondent.
Orders
- The application is struck out.
- The applicant shall pay the respondent costs assessed at Shs.1,500 within 10 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL
AT KISUMU
CORAM: TUNOI, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 221 OF 2001 BETWEEN
KABETE MBUGA ....................................................... APPLICANT
AND
NYAKANGI NYAMACHE ................................................. RESPONDENT
(Application for extension of time to serve Notice of Appeal and lodge
Record of Appeal out of time in an intended appeal from the ruling
and order of the High Court of Kenya at Kisii (Wambilyangah, J.)
dated 15th December, 2000
in
H.C.C.S. NO. 84 OF 1996)
******************* R U L I N G:
The certificate of delay incorporated in this application shows that the proceedings were ready for collection on 4th April, 2001. This certificate has not been challenged as far as its validity is concerned. This being the case, the applicant can find solace in rule 81 of the Rules. Thus his appeal, Civil Appeal No. 77 of 2001 which was lodged on 4th April, 2001 has been filed within the prescribed time.
It would appear, therefore, that this application need not have been filed and is, indeed, misconceived and probably premature. To say the least it was unnecessary. I order it struck out with costs assessed at Shs.1,500/= which should be paid by the applicant to the respondent within 10 days hereof.
Dated and delivered at Kisumu this 19th day of November, 2001.
P. K. TUNOI ............... JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR