[2000] KECA 194 (KLR)
The court declined to exercise its discretion to extend time for lodging and serving the Notice of Appeal because it was not clear from the record whether the applicant had complied with the proviso to rule 81(1) of the Court of Appeal Rules. Without evidence of such compliance, the court could not determine whether...
Source-derived case information.
- Citation
- [2000] KECA 194 (KLR)
- Parties
- Applicant: Kenya Commercial Bank Limited; Respondent: Stephen Kirumba Gerald
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 144 of 1999
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- JE Gicheru
- Legal Topics
- Extension of Time, Notice of Appeal, Court of Appeal Rules, Procedural Compliance
- 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
Kenya Commercial Bank Limited
Applicant
Stephen Kirumba Gerald
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant is entitled to an extension of time to lodge and serve the Notice of Appeal out of time.
- 2 Whether the applicant complied with the proviso to rule 81(1) of the Court of Appeal Rules.
- 3 Whether the delay in lodging the Notice of Appeal was sufficiently explained.
Ratio Decidendi
The court declined to exercise its discretion to extend time for lodging and serving the Notice of Appeal because it was not clear from the record whether the applicant had complied with the proviso to rule 81(1) of the Court of Appeal Rules. Without evidence of such compliance, the court could not determine whether the applicant was entitled to the benefit of the proviso, and thus the delay in lodging the intended appeal remained unexplained. As a result, the application for extension of time was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The applicant's application for extension of time is dismissed.
- The applicant shall pay the costs of this application to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Gicheru, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 144 OF 1999
BETWEEN
KENYA COMMERCIAL BANK LIMITED............................APPLICANT
AND
STEPHEN KIRUMBA GERALD..................................RESPONDENT
(An application for extension of time for filing Notice of Appeal in an
intended appeal from the ruling of the High Court of Kenya at Nairobi (Kuloba, J.)
dated 24/11/98
in
H.C.C.C. NO. 1738 OF 1985)
***********************
RULING:
In this Notice of Motion which was lodged in this Court on 22nd June, 1999 the applicant is seeking extension of time for lodging and serving the Notice of Appeal so that the said Notice of Appeal lodged in the superior court on 16th December, 1998 and served on the respondent on 5th January, 1999 be deemed to have been lodged and served respectively within the extended time. The applicant also seeks extension of time within which to lodge its record of appeal.
The order of the superior court intended to be appealed from was made on 24th November, 1998 and as I have indicated above, the Notice of Appeal was lodged in the superior court on 16th December, 1998 - 8 days outside the prescribed period.
Whereas, however, after discounting the period of the 1998 Christmas Vacation there may have been no delay in the service of the Notice of Appeal upon the respondent on 5th January, 1999, it does not appear from the record of the present application whether or not the proviso to rule 81(1) of the Court of Appeal Rules was complied with. This disables me from exercising my discretion under rule 4 of the said Rules in favour of the applicant as it is uncertain whether the benefits of the aforesaid proviso are available to the applicant: for if they are not, the delay in lodging the intended appeal within the prescribed time remains unexplained. In the result, the applicant's application is dismissed with costs to the respondent.
Dated and delivered at Nairobi this 11th day of February, 2000.
J.E. GICHERU
................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR