[1999] KECA 181 (KLR)
The court found that the delay in filing the appeal was not inordinate and was satisfactorily explained by the applicant, particularly due to the need to rectify an error in the dating of the ruling. The respondent did not object to the application, and the court was satisfied that there were sufficient grounds to...
Source-derived case information.
- Citation
- [1999] KECA 181 (KLR)
- Parties
- Applicant: Mwalimu Co-operative Savings & Credit Ltd.; Respondent: Kerry W. Muema t/a Little Tessie Saloon & Five Others
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 112 of 1998
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application granted
- Legal Topics
- Extension of Time, Appeals Process, Procedural Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwalimu Co-operative Savings & Credit Ltd.
Applicant
Kerry W. Muema t/a Little Tessie Saloon & Five Others
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file the notice and record of appeal out of time.
- 2 Whether the delay in filing the appeal was inordinate or excusable.
Ratio Decidendi
The court found that the delay in filing the appeal was not inordinate and was satisfactorily explained by the applicant, particularly due to the need to rectify an error in the dating of the ruling. The respondent did not object to the application, and the court was satisfied that there were sufficient grounds to exercise its discretion in favour of the applicant. Accordingly, the court granted the orders sought, allowing the applicant to file the notice of appeal within seven days and the record of appeal within fourteen days.
Court Disposition
application granted
Orders
- The applicant shall file its Notice of appeal within seven days from the date of the ruling.
- The applicant shall file its record of appeal within fourteen days from the date of the ruling.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: OWUOR, J.A (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 112 OF 1998 BETWEEN
MWALIMU CO-OPERATIVE SAVINGS & CREDIT LTD. ...........APPLICANTS AND KERRY W. MUEMA T/S LITTLE TESSIE SALOON & FIVE OTHERS ...............RESPONDENTS
(Application for extension of time to file Notice and Record of appeal out of time from the Ruling and Order of the High Court of Kenya at Nairobi (Hon. Justice Aganyanya) dated 22nd February, 1995 in H.C.C.C No. 50 of 1995) R U L I N G
The orders sought for in this application brought under rules 4 and 41 of the Rules of this Court are that:-
"1. The applicant be allowed to file the Notice of Motion out of time.
2. The applicant be allowed to file the record of appeal out of time against the ruling/order of the Hon. Justice D.K.S Aganyanya dated 22nd February, 1995, and that the costs of the application be provided for".
On 22nd day of February, 1995 the superior court (Aganyanya J) restrained the applicants, Mwalimu Co-operative Savings & Credit Society Ltd. from evicting or auctioning the property of the respondent, Kerry Muema, trading as Little Tessie Saloon & Five others, until the hearing and determination of a case that is going on between the parties.
Pursuant to instruction given by the applicant, appeal No. 99 of 1996 was accordingly filed. The same was first listed for hearing before this Court on 9th of May, 1997, it was however taken out of that day's hearing list to allow Mr. Mboroki appearing for the appellant to rectify what was an apparent mistake in the dating of the ruling. The appeal was once more listed for hearing on 4th of May, 1998. This time round the Court struck it off on account of being incurably defective.
Mr. Mboroki contends that the appeal raises serious issues of law and the delay that has occurred before filing of the appeal has not been inordinate on account of the above facts.
Mrs. Kasango appearing for the respondents has not objected to the application and in my view rightly so. I am satisfied that there is enough ground upon which to exercise my discretion in favour of the applicant and grant the two orders sought for.
In that regard, the application is hereby granted. The applicant shall file its Notice of appeal within seven days from today's date and thereafter file its record of appeal within 14 days from today's date. The respondent shall have costs of the application.
Dated and delivered at Nairobi this 28th day of May,1999.
E. OWUOR ...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR