[2000] KECA 124 (KLR)
The court found that the order requiring the applicant to lodge the record of appeal within 21 days was not sought by the applicant and was made at a time when the applicant had not yet obtained the proceedings of the superior court. The applicant did not obtain a certificate of delay and therefore could not benefit...
Source-derived case information.
- Citation
- [2000] KECA 124 (KLR)
- Parties
- Applicant: Kenya Breweries Limited; Respondent: Daniel Kiere Kimunyi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 365 of 1999
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time
- Outcome
- Application allowed in part; extension of time granted; costs awarded to respondent.
- Legal Topics
- Extension of Time, Notice of Appeal, Record of Appeal, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Breweries Limited
Applicant
Daniel Kiere Kimunyi
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the applicant should be granted an extension of time to lodge and serve the record of appeal out of time.
- 2 Whether the order requiring the record of appeal to be lodged within 21 days, which was not sought by the applicant, should be reconsidered.
Ratio Decidendi
The court found that the order requiring the applicant to lodge the record of appeal within 21 days was not sought by the applicant and was made at a time when the applicant had not yet obtained the proceedings of the superior court. The applicant did not obtain a certificate of delay and therefore could not benefit from the proviso to rule 81. Nevertheless, the court exercised its discretion under rule 4 of the Court of Appeal Rules to extend the time for lodging the record of appeal by 21 days from the date of the ruling. The court also awarded costs of KES 3,000 to the respondent due to the applicant's failure to avail itself of the benefits of the proviso to rule 81.
Court Disposition
Application allowed in part; extension of time granted; costs awarded to respondent.
Orders
- Time for lodging the record of appeal is extended by 21 days from the date of the ruling.
- Applicant to pay costs of KES 3,000 to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI
(CORAM: GICHERU, J.A. (IN CHAMBERS))
CIVIL APPLICATION NO. NAI. 365 OF 1999 (NYR. 22/99)
BETWEEN
KENYA BREWERIES LIMITED .............................. APPLICANT
AND
DANIEL KIERE KIMUNYI ................................. RESPONDENT
(Application for extension of the validity of the Notice of Appeal and extension of time to lodge and serve the Record of Appeal out of time in an intended appeal from the Judgment of the High Court of Kenya at Nyeri (Justice Osiemo) dated 7th December, 1998
in
H.C.C.C. NO. 30 OF 1996)
******************
R U L I N G:
According to Counsel for the applicant, Mr. Lutta, in Civil Application NO. NAI. 49 of 1999 (NYR 4/99), the applicant had sought extension of time within which to lodge and serve the Notice of Appeal. In granting that application on 13th May, 1999 the single judge of this Court also ordered that the record of appeal be lodged within 21 days of lodging the Notice of Appeal within the extended time. This latter order had not been sought by the applicant since as at the date of granting the extension of time within which to lodge the Notice of Appeal it had not obtained the proceedings of the superior court. Indeed, according to the applicant, it received the said proceedings on 3rd November, 1999 and made the present application on 30th November, 1999 having not obtained a certificate of delay so as to avail itself the benefits of the proviso torule 81of the Court of Appeal Rules, hereinafter called the Rules. Had the applicant availed itself the benefits of the proviso to the aforesaid rule, as at the date of making this application, it still would have had 33 days within which to lodge the record of appeal and thereby making this application unnecessary if the said record was lodged within the 33 days. Notwithstanding this lapse, however, as the order of the single judge of this Court requiring the applicant to lodge the record of appeal within 21 days of lodging the Notice of Appeal as is mentioned above had not been sought by the applicant in its application for extension of time within which to lodge and serve the Notice of Appeal, I would in the circumstances exercise my discretion underrule 4 of the Rules in favour of the applicant so that the time for lodging its record of appeal is extended by 21 days from the date hereof but as the applicant did not avail itself the benefits of the proviso to rule 81 of the Rules, the costs occasioned by this application assessed at K.Shs.3,000/= are awarded to the respondent.
Dated and delivered at Nyeri this 19th day of May, 2000.
J.E. GICHERU .....................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR