[2014] KEHC 3951 (KLR)
The court found that the judgment was delivered on 20th June 2013, making the 30-day period for filing an appeal expire on 20th July 2013, which was a Saturday. According to Order 50 Rule 3 of the Civil Procedure Rules, if the last day for filing falls on a day when the court is closed, the filing can be done on the...
Source-derived case information.
- Citation
- [2014] KEHC 3951 (KLR)
- Parties
- Appellant: Mohammed Said Omar; Respondent: Millicent Achieng Otieno
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 54 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Being Out of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Appeal Timelines, Computation of Time, Dismissal of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Said Omar
Appellant
Millicent Achieng Otieno
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Being Out of Time
Legal Issues
- 1 Whether the appeal was filed out of time contrary to statutory requirements.
- 2 Whether the computation of the 30-day appeal period excludes weekends when the deadline falls on a non-working day.
Ratio Decidendi
The court found that the judgment was delivered on 20th June 2013, making the 30-day period for filing an appeal expire on 20th July 2013, which was a Saturday. According to Order 50 Rule 3 of the Civil Procedure Rules, if the last day for filing falls on a day when the court is closed, the filing can be done on the next working day. The appeal was filed on Monday, 22nd July 2013, which was the next working day. Therefore, the appeal was filed within time, and the application to dismiss the appeal for being out of time was without merit.
Court Disposition
application dismissed with costs
Orders
- The application dated 20-11-2013 is disallowed with costs.
Full Case Text
Judgment text and source record
12 paragraphs
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO. 54 OF 2013
MOHAMMED SAID OMAR.......................APPELLANT
VERSUS
MILLICENT ACHIENG OTIENO.............RESPONDENT
R U L I N G
The application dated 20-11-2013 by the applicant prays that this appeal be dismissed for the reason that it was filed out of time. The same is supported by the affidavit of Joseph Musomba. He depones that the appellant filed his appeal on 20-6-2013 yet the judgment of the lower court was delivered on 6-8-2013. According to him the 30 days window had already lapsed.
The respondent on the other hand filed grounds of opposition where she argued that the appeal contrary to the applicant's assertion was filed on 22-7-2013 which was was within 30 days period required. The counsel for the respondent contended that 30 days expired on 20th July 2013 which was a Saturday and that the appeal could only be filed on a Monday which was a working day.
I have heard the sentiments by the parties. I have also perused the court proceedings and noted that judgment was delivered on 20th June, 2013 and therefore 30 days was to expire on 20th July, 2014. The same was fell on a Saturday and naturally pursuant to the provisions of Order 50 Rule 3 the next working day was on Monday 22-7-2013 when the filing was done.
I do agree with the respondent submissions. If for example the 30 days had expired in the usual working days then it would have been necessary to file the same within the requisite period. For now I do not find the application meritorious and I shall proceed to disallow the same with costs.
Dated, signed and delivered at Kisumu this 30th day of June, 2014.
H.K. CHEMITEI JUDGE