[1998] KECA 83 (KLR)
The court granted the application for leave to file and serve the notice of appeal out of time because the respondent neither appeared nor filed a replying affidavit to challenge the facts presented by the applicant. The absence of opposition and the uncontroverted affidavit evidence led the court to exercise its...
Source-derived case information.
- Citation
- [1998] KECA 83 (KLR)
- Parties
- Applicant: Kitale Municipal Council; Respondent: Compware Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 209 of 1998
- Procedural Posture
- Civil Application / Application for Leave to File and Serve Notice of Appeal
- Outcome
- application granted
- Legal Topics
- Leave to Appeal, Notice of Appeal, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kitale Municipal Council
Applicant
Compware Limited
Respondent
Procedural Posture
Civil Application / Application for Leave to File and Serve Notice of Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to file and serve a notice of appeal out of time.
Ratio Decidendi
The court granted the application for leave to file and serve the notice of appeal out of time because the respondent neither appeared nor filed a replying affidavit to challenge the facts presented by the applicant. The absence of opposition and the uncontroverted affidavit evidence led the court to exercise its discretion in favour of the applicant. The court specified the timelines for filing the notice of appeal and the record of appeal to ensure procedural compliance and clarity.
Court Disposition
application granted
Orders
- Leave is granted to the applicant to file and serve the notice of appeal within seven days.
- The record of appeal may be filed within 30 days of the proceedings being available.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: SHAH J.A (IN CHAMBERS)) CIVIL APPLICATION NO. NAI.209 OF 1998 (83/98 UR) BETWEEN
KITALE MUNICIPAL COUNCIL ...............................APPLICANT AND COMPWARE LIMITED .....................................RESPONDENT
(Application for leave to file and serve Notice of appeal from a judgment of the High Court of Kenya at Kisumu (Mr. Justice Wambilyangah) dated 20th March, 1998 in H.C.C.C. NO. 178 OF 1996 ***************** RULING
In the absence of the respondent and also as there is no replying affidavit to challenge the facts as deponed to by Mr. Kiarie, I grant the first prayer of the Notice of motion dated 11th May, 1998. Costs of this application will be costs in the intended appeal. So to leave no room for doubt, the notice of appeal will be filed within the next seven days and the record of appeal may be filed within 30 days of the proceeding being available.
Dated and delivered at Nairobi this 17th day of
September, 1998.
A.B SHAH ...................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR