[2003] KEHC 139 (KLR)
The High Court lacks jurisdiction to extend time for serving a notice of address where such time is fixed by the Court of Appeal Rules and not by the Civil Procedure Rules. Order 49 Rule 5 of the Civil Procedure Rules only empowers the High Court to enlarge time limits set by those rules or by court order, not by...
Source-derived case information.
- Citation
- [2003] KEHC 139 (KLR)
- Parties
- Applicant: National Bank of Kenya Ltd; Respondent: David Mukii Mereke t/a Mereke & Company Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 34 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Serve Notice of Address
- Outcome
- application struck out for want of jurisdiction
- Judges
- SC Ondeyo
- Legal Topics
- Extension of Time, Jurisdiction of High Court, Application of Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Bank of Kenya Ltd
Applicant
David Mukii Mereke t/a Mereke & Company Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Serve Notice of Address
Legal Issues
- 1 Whether the High Court has jurisdiction to extend time for serving notice of address when such time is fixed by the Court of Appeal Rules.
- 2 Whether Order 49 Rule 5 of the Civil Procedure Rules applies to time limits set by the Court of Appeal Rules.
Ratio Decidendi
The High Court lacks jurisdiction to extend time for serving a notice of address where such time is fixed by the Court of Appeal Rules and not by the Civil Procedure Rules. Order 49 Rule 5 of the Civil Procedure Rules only empowers the High Court to enlarge time limits set by those rules or by court order, not by rules of a higher court. The application for extension of time should have been made to the Court of Appeal, not the High Court. Consequently, the application is struck out for want of jurisdiction.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
MISCELLANEOUS APPLICATION NO 34 OF 2002
NATIONAL BANK OF KENYA LTD ……...……………. APPLICANT
VERSUS
DAVID MUKII MEREKA T/A
MEREKA & COMPANY ADVOCATES ……...……… RESPONDENT
RULING
This application was filed on 1st April, 2003 for an order that the court grants leave to the applicant to serve the notice of address on the Respondent out of the prescribed statutory time. The application is brought, under the provisions of Order 49 Rule 5 which provides that,
“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case m ay require and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.”
Under Rule 5 of Order 49, the High Court can only enlarge time which is fixed by the Civil Procedure Rules, a summary notice or order of the court.
It is conceded that the time within which to serve a notice of address on the Respondent is fixed by the court of appeal Rules and not by the Civil Procedure Rules. I agree with counsel for the Respondent, that this court would have no jurisdiction to extend the time within which a notice of address should be served upon the Respondent because, that would be a matter to be determined by the court of appeal whose rules have fixed such time. If Rule 5 of Order 49 had intended to give the High Court the power to enlarge time fixed by the Court of Appeal Rules, that could have been reflected in that Rule. I do not think that Section 3A of the Civil Procedure Act is applicable here in view of the fact that the Court of Appeal Rules have fixed the time within which such notice should be served upon the Respondent.
This application should have been filed in the Court of Appeal and not in the High Court. The same is struck out with costs to the Respondent as this court has got no jurisdiction to grant the orders sought.
Delivered at Nairobi this 7th day of May, 2003.
S. C. ONDEYO
JUDGE
7. 5.2003