[2001] KECA 202 (KLR)
The applicant took all necessary steps promptly after the ruling, including applying for proceedings and lodging a notice of appeal. The delay in filing the record of appeal was attributable to the time taken to obtain the proceedings and ruling, as evidenced by a certificate of delay. The court found the...
Source-derived case information.
- Citation
- [2001] KECA 202 (KLR)
- Parties
- Applicant: Mistry Jadva Parbat & Co Ltd; Respondent: APV Hall Equatorial Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 96 of 2001
- Procedural Posture
- Civil Application / Application for Extension of Time to File Record of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals Process, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mistry Jadva Parbat & Co Ltd
Applicant
APV Hall Equatorial Ltd
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the applicant is entitled to an extension of time to file the record of appeal under rule 4 of the Court of Appeal Rules.
- 2 Whether the delay after receipt of proceedings and ruling is excusable.
Ratio Decidendi
The applicant took all necessary steps promptly after the ruling, including applying for proceedings and lodging a notice of appeal. The delay in filing the record of appeal was attributable to the time taken to obtain the proceedings and ruling, as evidenced by a certificate of delay. The court found the explanation for the subsequent short delay unconvincing but not sufficient to deny the extension, especially since the applicant had previously complied with all requirements. The court exercised its discretion under rule 4 to extend the time for filing the intended appeal by fourteen days from the date of the ruling, with the condition that failure to lodge the appeal within that period...
Court Disposition
application allowed
Orders
- Time for the applicant to file its intended appeal is extended by fourteen days from the date of this ruling.
- If the appeal is not lodged within fourteen days, the motion stands dismissed with costs and without further orders.
Full Case Text
Judgment text and source record
16 paragraphs
IN THE COURT OF APPEAL AT NAIROBI CORAM: OMOLO, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI 96 OF 2001 (UR 57/01)
BETWEEN
MISTRY JADVA PARBAT & CO LTD .......................... APPLICANT
AND
APV HALL EQUATORIAL LTD ................................RESPONDENT
R U L I N G
I am asked underrule 4 of the Court's Rules to exercise my discretion under that rule and extend the time within which a record of appeal is to be filed.
The decision the applicant intends to appeal against was given on the 5th October, 1999. The applicant applied for certified copies of the proceedings and ruling on the 6th October, 1999, that is, one day after the ruling. Then a notice of appeal was lodged in the High Court on the same 6th October, 1999. Clearly the applicant did all that it was required to do in order to enable it appeal; it even applied to the learned judge of High Court for leave to appeal and the same was granted. Whether that leave was necessary and whether the learned judge had authority to grant it cannot be a matter for me to determine within this application. If the respondent thinks there is no right of appeal and that the judge had no authority to grant leave, I am sure the respondent's counsel will take up that point at an appropriate stage.
The applicant was supplied with the proceedings and ruling on the 13th February, 2001. The certificate of delay issued by the Deputy Registrar of the superior court shows that to be so. So the applicant cannot be penalised for the delay between the 5th October, 1999 when the ruling was rendered and the 13th February, 2001 when the proceedings and the ruling were supplied. In terms of the proviso to rule 81 that period must not be taken into account when computing time.
This motion was filed on the 29th March, 2001. That as a period of over one month from the date the necessary documents were supplied to the applicant. I have taken into account the explanation given for that delay; it is not very convincing but I am not prepared to reject it, particularly in view of the fact that the applicant had previously done everything within the time allowed. Mr Murugara for the respondent says that it was not necessary for the applicant to bring this motion by the 29th March, 2001 because as at that date, the applicant could have filed its appeal without seeking an extension. That may be so, but as Mr Rajinder Billing for the applicant correctly points out, rule 4 gives the court power to extend time either before or after the doing of an act. At any rate, as at now, the applicant cannot file any appeal without time being extended. Taking everything into consideration, I think I should allow this motion. I do so and extend for the applicant the time within which to file its intended appeal by fourteen days from the date hereof. If the appeal is not lodged within the said fourteen days from today, then in that event, the motion shall stand dismissed with costs and without any further orders from the court. The costs of the motion shall be in the intended appeal.
Dated and delivered at Nairobi this 30th day of October, 2001.
R. S. C. OMOLO
----------------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR