[2002] KECA 269 (KLR)
The court found that the record of appeal was filed out of time, as the Certificate of Delay indicated that the last day for filing was 3rd May, 2002, but the record was filed on 17th June, 2002. There was no evidence of any enlargement of time having been sought or granted. Therefore, the appeal was incompetent and...
Source-derived case information.
- Citation
- [2002] KECA 269 (KLR)
- Parties
- Appellant: Kenya Tea Development Agency Ltd.; Respondent: Kabiro Ndaiga & Co. Advocates
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 150 of 2002
- Procedural Posture
- Civil Appeal / Application to Strike Out Notice of Appeal and Record of Appeal
- Outcome
- application allowed; appeal struck out with costs
- Legal Topics
- Appeal Timelines, Record of Appeal, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Tea Development Agency Ltd.
Appellant
Kabiro Ndaiga & Co. Advocates
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Notice of Appeal and Record of Appeal
Legal Issues
- 1 Whether the record of appeal was filed within the prescribed period under the Court of Appeal Rules.
- 2 Whether the absence of an enlargement of time renders the appeal incompetent.
Ratio Decidendi
The court found that the record of appeal was filed out of time, as the Certificate of Delay indicated that the last day for filing was 3rd May, 2002, but the record was filed on 17th June, 2002. There was no evidence of any enlargement of time having been sought or granted. Therefore, the appeal was incompetent and liable to be struck out under Rule 80 of the Court of Appeal Rules.
Court Disposition
application allowed; appeal struck out with costs
Orders
- The record of appeal is struck out as having been filed out of time.
- The appellant shall pay the costs of the application and the appeal.
Full Case Text
Judgment text and source record
16 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: TUNOI, LAKHA & OWUOR, JJ.A.) CIVIL APPEAL (APPLICATION) NO. 150 OF 2002
BETWEEN
KENYA TEA DEVELOPMENT AGENCY LTD. ......................APPELLANT
AND
KABIRO NDAIGA & CO. ADVOCATES ...........................RESPONDENT
(Application to strike out the Notice of Appeal and Record of Appeal in Civil Appeal No. 150 of 2002 being an Appeal from the Ruling/Orders of the High Court of Kenya at Nairobi by the (Honourable Justice Alnashir Visram) dated 18th day of December, 2001
in
H.C. MISC. APPLICATION NO. 357 OF 2001) *********************
RULING OF THE COURT
This is an application under rule 80 of the Rules of this Court to strike out the Record of Appeal filed on 17th June, 2002 as being filed outside the prescribed period. This is clearly so having regard to the Certificate of Delay which shows that necessary advice of readiness of the proceedings was sent by a letter dated 4th March, 2002. The last day for filing the record of appeal was3rd May, 2002. In the absence of any enlargement of time the appeal was filed out of time. It is therefore struck out with costs including costs of the application.
Dated and delivered at Nairobi this 11th day of November, 2002.
P.K. TUNOI ................... JUDGE OF APPEAL
A.A. LAKHA .................... JUDGE OF APPEAL
E. OWUOR .................. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR