[1996] KECA 8 (KLR)
The application for extension of time to file an appeal was dismissed because the applicant failed to provide any explanation for the 49-day delay between the striking out of the previous appeal and the filing of the present application. Furthermore, the application was incompetent as it did not seek extension of...
Source-derived case information.
- Citation
- [1996] KECA 8 (KLR)
- Parties
- Applicant: Morris and Company Limited; Respondent: Damco Agencies Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 182 of 1996
- Procedural Posture
- Civil Application / Application for Extension of Time to File Appeal
- Outcome
- application dismissed with costs
- Judges
- RO Kwach
- Legal Topics
- Extension of Time, Appeal Out of Time, Notice of Appeal, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Morris and Company Limited
Applicant
Damco Agencies Limited
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the application for extension of time after the appeal was struck out.
- 2 Whether the application for extension of time is competent in the absence of a concurrent application to extend time for filing a notice of appeal.
- 3 Whether the court should exercise its discretion to grant the extension sought given the long lapse of time since the original decision.
Ratio Decidendi
The application for extension of time to file an appeal was dismissed because the applicant failed to provide any explanation for the 49-day delay between the striking out of the previous appeal and the filing of the present application. Furthermore, the application was incompetent as it did not seek extension of time to file a fresh notice of appeal, which is a prerequisite after an appeal and its notice have been struck out. The court also considered the significant lapse of time since the original High Court decision (1987) and found no justification to exercise its discretion in favour of the applicant. The cumulative effect of unexplained delay, procedural deficiency, and the passage...
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file an appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: KWACH, J,A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI.182 OF 1996
BETWEEN
MORRIS AND COMPANY LIMITED ................ APPLICANT
AND
DAMCO AGENCIES LIMITED......................RESPONDENT
(Application for leave to file an appeal out of time in an intended appeal from the ruling of the High Court of Kenya at Nairobi (Justice Mbogholi) dated 5th October, 1987
in
H.C.C.C. NO. 3237 OF 1978)
***************
RULING
This is an application under rule 4 of the Court of appeal Rules for extension of time to file an appeal against the decision of the superior court given way back on 5th October, 1987. An earlier appeal was filed by the applicant on 22nd May. 1992, but this was struck out by this Court as incompetent on 17th April, 1996, as the record of appeal apparently did not contain certified copy of the decree appealed against as required ty 85(1)(b) of the Rules of this Court,
In the supporting affidavit of Mrs Rose Ochana, w appear for the applicant, it is deponed that the applicant desires to exercise its right of appeal, but no attempt has been made to explain why it took some 49 days after appeal was struck out before bringing this application. The appeal was struck out on 17th April, 1996, but the application was not filed until 5th June, 1996. That is a delay which calls for an explanation.
There is also one other point which I think I should deal with. The order sought on the motion is one for extension of time to file an appeal. Once an appeal is struck out everything goes including the notice of appeal, and a party wishing to pick up - pieces must of necessity seek an order, not only to extend the time for filing an appeal, but also for filing a notice of Appeal.
There is no application before me to extend the time for filing a notice of appeal. That apart, I am also of the opinion that 1937 is a very long way back and a great deal of water must have by now passed under the bridge,
In the final result, I do not think that this is a case in which I should exercise my discretion in favour of the applicant. Accordingly, the application fails and is dismissed with costs to the respondent.
Dated and delivered at Nairobi this 24th day of September,1996.
R.O. KWACH
………………………….
JUDGE OF APPEAL