[1997] KECA 176 (KLR)
The court found that the applicants failed to demonstrate that they were not served with notice of the date of delivery of the judgment. The judge had written to their advocate, and there was no affidavit from the advocate denying service. The Deputy Registrar recorded that all parties were present at the delivery...
Source-derived case information.
- Citation
- [1997] KECA 176 (KLR)
- Parties
- Applicant: Mulembe Farm Limited Simeon Musungu; Respondent: John B. Masika; Respondent: Wanyama Biketi; Respondent: Simeon Masika; Respondent: Yohana Mulama
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 31 of 1997
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal and Appeal Out of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Process, Service of Judgment, Exercise of Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mulembe Farm Limited Simeon Musungu
Applicant
John B. Masika
Respondent
Wanyama Biketi
Respondent
Simeon Masika
Respondent
Yohana Mulama
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal and Appeal Out of Time
Legal Issues
- 1 Whether the applicants were served with notice of the date of delivery of judgment.
- 2 Whether the delay in filing the application for extension of time was satisfactorily explained.
- 3 Whether the court should exercise its discretion to grant extension of time to file notice of appeal and record of appeal out of time.
Ratio Decidendi
The court found that the applicants failed to demonstrate that they were not served with notice of the date of delivery of the judgment. The judge had written to their advocate, and there was no affidavit from the advocate denying service. The Deputy Registrar recorded that all parties were present at the delivery of judgment. Furthermore, the applicants were aware of the judgment by 22nd November, 1996, but did not file the application until 4th February, 1997, a delay of over two months that was not satisfactorily explained. Given these circumstances, the court was not persuaded to exercise its discretion to grant an extension of time, and the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file notice of appeal and record of appeal out of time is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
CORAM: LAKHA, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 31 OF 1997
BETWEEN
MULEMBE FARM LIMITED SIMEON MUSUNGU ........................... APPLICANTS
AND
JOHN B. MASIKA
WANYAMA BIKETI
SIMEON MASIKA
YOHANA MULAMA .................................................................. RESPONDENTS
(Application for extension of time to file notice of appeal and an appeal out of time in an intended from a judgment of the High Court of Kenya at Nakuru (Tunoi J) dated 4th October, 1996 in H.C.C.C. NO. 60 OF 1978) ***************
R U L I N G
This is an application under rule 4 of the Rules of this Court seeking extension of time for filing a notice of appeal and the record of appeal out of time. It is based on the sole ground that no notice was served upon the applicants or their advocates of the date of delivery of the judgment. On the material before me, I am not satisfied that this is so. The judge wrote a letter dated 26th September, 1996 addressed, inter alia, to Mr. Kiangoi who was one of the advocates who conducted and concluded the case on behalf of the applicants. There is no affidavit from him to say that he was not served. The Deputy Registrar who delivered the judgment has recorded that all parties were present.
It is deponed in the affidavit on behalf of the Respondents that the judgment intended to be appealed against has been enforced, a sub-division made and members are settled in terms of the judgment. The applicants knew of the delivery of judgment at the latest by 22nd November, 1996. Yet this application was not filed until 4th February, 1997, more than two months later. This delay has not been satisfactorily accounted for. In all the circumstances, I am not persuaded that this is a proper case for the exercise of my discretion to grant the extension. Accordingly, the application is dismissed with costs.
Dated and delivered at Nakuru this 23rd day of September, 1997.
A. A. LAKHA
---------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR