[2024] KECA 752 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in serving the notice of appeal, namely the late release of the notice by the Deputy Registrar. The application for extension of time was unopposed and there was no evidence of prejudice to the respondent. The court exercised its...
Source-derived case information.
- Citation
- [2024] KECA 752 (KLR)
- Parties
- Applicant: David Nyaboga; Respondent: Rosemary Adaeze Chiemeke (The legal representative of Agustina Ngozi Ngwu)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application E071 of 2023
- Procedural Posture
- Civil Application / Application for Enlargement of Time to Serve Notice of Appeal
- Outcome
- application allowed
- Judges
- FA Ochieng
- Legal Topics
- Extension of Time, Service of Notice, Court of Appeal Rules, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Nyaboga
Applicant
Rosemary Adaeze Chiemeke (The legal representative of Agustina Ngozi Ngwu)
Respondent
Procedural Posture
Civil Application / Application for Enlargement of Time to Serve Notice of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to serve the notice of appeal outside the prescribed period under the Court of Appeal Rules.
- 2 Whether the late service of the notice of appeal should be deemed as properly served within time as extended by the court.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in serving the notice of appeal, namely the late release of the notice by the Deputy Registrar. The application for extension of time was unopposed and there was no evidence of prejudice to the respondent. The court exercised its discretion to extend the time for service of the notice of appeal, holding that the notice served on 1st December 2023 should be deemed as having been served within time as extended by the court. The application was lodged promptly and there were no factors militating against the grant of the orders sought.
Court Disposition
application allowed
Orders
- Time for service of the notice of appeal is extended.
- The notice of appeal served on 1st December 2023 is deemed to have been served within time as extended by the court.
Full Case Text
Judgment text and source record
26 paragraphs
Nyaboga v Chiemeke (The legal representative of Agustina Ngozi Ngwu) (Civil Application E071 of 2023) [2024] KECA 752 (KLR) (21 June 2024) (Ruling)
Neutral citation: [2024] KECA 752 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Civil Application E071 of 2023
FA Ochieng, JA
June 21, 2024
Between
David Nyaboga
Applicant
and
Rosemary Adaeze Chiemeke (The legal representative of Agustina Ngozi Ngwu)
Respondent
Ruling
(An application for enlargement of time to allow the applicant serve a notice of appeal outside the requisite time under the Court of Appeal Rules) 1. The applicant, David Nyaboga invoked the provisions of Rule 4 of the Court of Appeal Rules, 2022, in seeking an extension of time within which the Notice of Appeal could be served.
2. In his supporting affidavit, Elijah Momanyi Mogona, the learned advocate for the applicant, deponed that the notice of appeal was dated 9th November 2023, but was filed on 14th November 2023. However, it was only on 30th November 2023 that the learned Deputy Registrar signed and released the said notice, to the applicant’s counsel.
3. On the following day, (being 1st December 2023), the applicant served the notice of appeal, upon the respondent.
4. Pursuant to Rule 79 of the Court of Appeal Rules, a notice of appeal ought to be served within 7 days of it being lodged in court.
5. Therefore, as observed by the applicant, he was late in serving the notice of appeal. It is for that reason that the applicant has asked the Court to extend the time for service of the notice of appeal, so that although he had served it late, it ought to be deemed as having been served within the time, as extended by the Court.
6. Although the respondent was served with the application, she did not file any response thereto. In effect, the application is uncontroverted.
7. Secondly, I find that the orders sought, if granted would not occasion any prejudice to the respondent.
8. Furthermore, the application has been lodged in a timeous manner.
9. I therefore find no reason that would be a hurdle to the grant of the orders sought.
10. Accordingly, it is hereby ordered that the time for the service of the notice of appeal, be and is hereby extended. Consequently, I order that the notice of appeal which was served on 1st December, 2023 be deemed to have been served within tim*e, as extended by the Court.
11. Finally, I order that costs of the application be in the cause, in the substantive appeal.
DELIVERED AND DATED AT NAKURU THIS 21ST DAY OF JUNE, 2024. F. OCHIENG.................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR