[2006] KECA 278 (KLR)
The court found that the applicant was not served with the notice for the delivery of judgment, which satisfactorily explained the delay in lodging the notice of appeal and record of appeal. Since the application was not opposed and the explanation for the delay was accepted, the court exercised its discretion to...
Source-derived case information.
- Citation
- [2006] KECA 278 (KLR)
- Parties
- Applicant: Kenya Tea Development Agency Ltd.; Respondent: Benson Ondimu Masese t/a B.O Masese & Company Advocates
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 353 of 2005
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time
- Outcome
- Application allowed.
- Legal Topics
- Extension of Time, Notice of Appeal, Service of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Tea Development Agency Ltd.
Applicant
Benson Ondimu Masese t/a B.O Masese & Company Advocates
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the applicant has satisfactorily explained the delay in lodging the notice of appeal and record of appeal out of time.
- 2 Whether the applicant should be condemned to pay the costs of the motion.
Ratio Decidendi
The court found that the applicant was not served with the notice for the delivery of judgment, which satisfactorily explained the delay in lodging the notice of appeal and record of appeal. Since the application was not opposed and the explanation for the delay was accepted, the court exercised its discretion to grant the extension of time sought. The court further held that the costs of the motion would be in the intended appeal, rather than being awarded immediately against the applicant.
Court Disposition
Application allowed.
Orders
- The notice of appeal dated 6th December and lodged in Court on 8th December, 2005 is deemed to have been lodged in time and the time for its lodgment is extended to the date when it was so lodged.
- The record of appeal must be lodged in Court within twenty one days of the date hereof and shall thereafter be served on the respondent within seven days of the date of its lodgment.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT KISUMU
CIVIL APPLICATION 353 OF 2005
KENYA TEA DEVELOPMENT AGENCY LTD. ..................……..…….. APPLICANT
AND
BENSON ONDIMU MASESE T/A B.O MASESE & COMPANY ADVOCATES ……RESPONDENT
(Application for extension of time to validate notice of appeal and to file and serve record of appeal out of time in an intended appeal from a judgment and decree of the High Court of Kenya at Kisumu (Tanui, J) dated 28th October, 2005
in
H.C.C.C No. 75 of 2004)
********************
R U L I N G
In substance, the motion before me is not opposed. It is agreed that the applicant was not served with the notice for the delivery of judgment and that satisfactorily explains the delay involved in the matter. The only point in contention appears to be whether the applicant should be condemned to pay the costs of the motion. Since the delay involved in the matter has been satisfactorily explained, I allow the applicant’s notice of motion dated and lodged in Court on 16th December, 2005 and I make the following orders:
(1)The notice of appeal dated 6th December and lodged in Court on 8th December, 2005 be deemed to have been lodged in time and the time for its lodgment is extended to the date when it was so lodged. The same has been duly served on the respondent.
(2)The record of appeal must be lodged in Court within twenty one days of the date hereof and shall thereafter be served on the respondent within seven days of the date of its lodgment.
(3)The costs of the motion shall be in the intended appeal.
Those shall be my orders in the motion.
Dated and delivered at Kisumu this 30th day of March, 2006.
R.S.C OMOLO
………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR