[1997] KECA 317 (KLR)
The court found that the delay in filing the notice of appeal was not inordinate and was caused by an advocate's mistake rather than any flagrant misconduct by the applicant. The intended appeal was considered arguable, and the applicant's right to challenge the judgment should not be unduly restricted. Exercising...
Source-derived case information.
- Citation
- [1997] KECA 317 (KLR)
- Parties
- Applicant: Kenya Bus Services Limited; Respondent: Meleksadik Okutoi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 113 of 1998
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application granted
- Legal Topics
- Extension of Time, Appeals Process, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Bus Services Limited
Applicant
Meleksadik Okutoi
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file the notice and record of appeal out of time.
- 2 Whether the delay in filing was inordinate or justified.
- 3 Whether the applicant's conduct warrants the exercise of the court's discretion in its favour.
Ratio Decidendi
The court found that the delay in filing the notice of appeal was not inordinate and was caused by an advocate's mistake rather than any flagrant misconduct by the applicant. The intended appeal was considered arguable, and the applicant's right to challenge the judgment should not be unduly restricted. Exercising its discretion under section 4, the court granted the extension of time to file the notice of appeal, finding it just to do so in the circumstances.
Court Disposition
application granted
Orders
- Time for filing the notice of appeal is extended; the applicant may file it within 14 days.
- The respondent shall have costs of the application assessed at Shs.2500/=.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (CORAM: PALL, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 113/98 (47/98 UR)
BETWEEN
KENYA BUS SERVICES LIMITED................................APPLICANT AND MELEKSADIK OKUTOI........................................RESPONDENT
(Application for extension of time to file Notice and Record of Appeal out of time in the intended appeal from the Judgment and decree of the High Court of Kenya at Nairobi (Mr. Justice D.K.S. Aganyanya) dated 11th March, 1991
in H.C.C.C. NO.1129 OF 1991) ***************
RULING
Judgment was delivered by the superior court on 11. 3.1998 ordering the applicant to pay as salary shs.3244/= per month from 1. 9.1987 to the date of judgment. The applicant was also ordered to refund the respondent's pension deductions. By this motion the applicant has sought an order for extension of time to file the notice as well as the record of appeal. Mr Billing for the applicant has by his affidavit in support of the application said that due to a mistake on his part, he forgot to file the notice of appeal in time.
The applicant has a right of appeal and the intended appeal does seem to be arguable. The delay is not so inordiante and the conduct of the applicant is not so flagrant that it should be deprived of its right to challenge the judgment in this court. Under s.4 I do have an unfeltered discretion to extend time on such terms as to me appear to be just. In the circumstances I grant the application and extnd the time for filing the notice of appeal. The applicant may file it within 14 days. The respondent shall have costs of the application assessed at Shs.2500/=.
Dated and delivered at Nairobi this 25th day of May, 1998.
G.S. PALL
................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR