[1986] KECA 80 (KLR)

REPUBLIC OF KENYA

Nyana Saw Mills v Kenya Commercial Finance Co Ltd

Court of Appeal, at Nairobi July 11, 1986

Platt Ag JA

Civil Application No NAI 3 of 1986

July 11, 1986, Platt Ag JAdelivered the following Ruling.

This is an application for extension of time to lodge the record of appeal and to serve the notice of appeal on the respondent.

The applicant, who is a layman and undertook to lodge his own appeal, had received judgment on December 17, 1985 and then, during the Christmas vacation lodged his notice of appeal on January 3, 1986. In doing so, he was within the time allowed because of the effect of rule 3(e) of the Court of Appeal Rules which allows the Christmas vacation to be excluded in computation of time. That period runs from December 21 to January 6. Therefore he had complied with rule 74(2) of the Rules. Unfortunately, he relied upon the court clerks to serve the notice on the respondent, or so he says. Service was never made and so by the 10th or perhaps the 13th January 1986, (if one takes the last three days of Christmas into account), time had expired.

The applicant also failed to serve a copy of his request for proceedings on the respondent. He had applied for proceedings on January 3, 1986 when he lodged his notice of appeal and, once again he relied on the clerk to serve a copy of the application on the advocate of the respondent.

It is alleged that the clerk also failed to serve this copy.

The applicant had sixty days from 3rd to 6th of January 1986 to lodge his record of appeal. That period would and at the latest on March 5, 1986. During this period the applicant was asked to pay for the copies of proceedings which he did on February 13, 1986. He must have realised that he was not going to be able to lodge his record of appeal in March, and on February 26, 1986 he brought this application for extension of time. That was a wise course, because, whilst he had made his application for the copies of the proceedings within 30 days of the date of decision, as required by the proviso to rule 81(1) of the Rules, he did not serve a copy of his application for these proceedings, and so, in accordance with rule 81 subrule (2) of the Rules, he was not allowed to deduct the period taken to obtain copies of the proceedings.

The applicant has therefore applied under rule 4 for extension of time for carrying out these two acts, first the service of the notice of appeal on the respondent and secondly the extension of time to lodge the record of appeal. The case is put on the basis that the applicant thought that he could trust court clerks in serving the documents which he had lodged in court, and secondly that having found that he was in trouble he had applied at once for an extension of time. It will be recalled that rule 4 provides that the court may extend time limited by the rules (inter alia) for the doing of any act authorised by the rules, whether before or after the time for doing the act, on such terms as the court, thinks just. The applicant relies upon the provision that he may apply before time has expired in the case of lodging the appeal, and after the time has expired in the case of service of the notice.

Mr Gaturu representing the respondent objected to any time being extended, but submitted that if the court might be inclined to grant the applicant this indulgence, it should be on terms that the applicant provides security for costs. I find myself in no position to be able to judge whether or not an order for security would be fair in the circumstances of this case. I understand that Mr Gaturu may make a formal application under rules 104 and 112; therefore I should say nothing further at this stage.

Looking at the questions raised by the application in the light of all the circumstances, it is my view that the applicant did not deliberately disregard the rules, but thought that he had complied with them until such time as he knew he was not able to lodge his record of appeal in time. It is not, of course, wise to rely on court clerks to carry out service of documents, because however willing such clerks may be, they may not be able to complete their promise. Parties should always undertake to get service carried out in the proper manner. On the other hand, the applicant’s blunder did not really cause the respondent any great hardship, since the respondent was apprised of the situation when this application was served upon him. I am satisfied that the applicant’s blunder in not effecting service properly should be excused in this case, and I shall make the following orders:

1) The applicant will serve the copy of the notice of appeal upon the respondent within seven days of today’s date;

2) There is no need to deal with the applicant’s failure to serve a copy of his request for proceedings because they had already been received by him, and the time taken in getting the proceedings cannot be used in computing the time taken for lodging the record of appeal; but

3) The record of appeal shall be lodged within one month of today’s date; and

4) I leave open the question of security

5) Costs to the respondent