[2001] KECA 152 (KLR)
The Court of Appeal determined that the first respondent was entitled to an adjournment to verify the authenticity of the record of appeal and to consider lodging an appeal or cross-appeal, as the time for doing so had not yet expired. The court recognized that the operative date for lodging an appeal is the date on...
Source-derived case information.
- Citation
- [2001] KECA 152 (KLR)
- Parties
- Appellant: Omega Enterprises (Kenya) Limited; Respondent: Eldoret Sirikwa Hotel Limited; Respondent: Andrew Douglas Gregory; Respondent: Kenya National Capital Corporation Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 235 of 2001
- Procedural Posture
- Civil Appeal / Application for Adjournment Prior to Substantive Hearing
- Outcome
- Appeal stood over generally; adjournment granted; costs in the appeal.
- Judges
- AB Shah, D Ole Keiwua
- Legal Topics
- Adjournment of Hearing, Record of Appeal Verification, Time for Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Omega Enterprises (Kenya) Limited
Appellant
Eldoret Sirikwa Hotel Limited
Respondent
Andrew Douglas Gregory
Respondent
Kenya National Capital Corporation Limited
Respondent
Procedural Posture
Civil Appeal / Application for Adjournment Prior to Substantive Hearing
Legal Issues
- 1 Whether the first respondent is entitled to an adjournment to verify the record of appeal and consider filing an appeal or cross-appeal.
- 2 Whether the proceedings and judgment used in the record of appeal are authentic and correspond with those supplied by the court.
- 3 Whether the operative date for lodging an appeal is affected by the date the proceedings and judgment are supplied by the court.
Ratio Decidendi
The Court of Appeal determined that the first respondent was entitled to an adjournment to verify the authenticity of the record of appeal and to consider lodging an appeal or cross-appeal, as the time for doing so had not yet expired. The court recognized that the operative date for lodging an appeal is the date on which the court notifies a party that the proceedings and judgment are ready for collection. The court balanced the need for expedition with the right of the respondents to a fair process, and accordingly, the appeal was taken out of the day's cause list and stood over generally to a new date to be fixed in the Registry. Costs occasioned by the adjournment were ordered to be...
Court Disposition
Appeal stood over generally; adjournment granted; costs in the appeal.
Orders
- The appeal is taken out of today's cause list and stood over generally to a new date to be fixed in the Registry.
- The costs occasioned by this adjournment shall be in the appeal in any event.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: TUNOI, SHAH & KEIWUA, JJ.A.) CIVIL APPEAL NO. 235 OF 2001
BETWEEN
OMEGA ENTERPRISES (KENYA) LIMITED ............................................ APPELLANT
AND
ELDORET SIRIKWA HOTEL LIMITED .........................................1ST RESPONDENT
ANDREW DOUGLAS GREGORY ..................................................2ND RESPONDENT
KENYA NATIONAL CAPITAL CORPORATION LIMITED ........... 3RD RESPONDENT
(Appeal from the Judgment and decree of the High Court of Kenya (Ringera, J.) dated 20th July, 2001
in
H.C.C.C. NO. 50 OF 1999) *******************
RULING OF THE COURT
When this appeal was called to hearing, Mr. Kipkorir counsel for the first respondent, informed us that though he had filed a Notice of Appeal within the prescribed time and consequently applied for the proceedings and judgment, the superior court informed him only on 13th November, 2001 that the same were ready for collection.
It is clear that this appeal was lodged on 5th September, 2001, and is based on the proceedings and judgment prepared by Mr. Esmail, counsel for the appellant. Mr. Kipkorir doubted their veracity and indicated that he would have liked to compare them with those supplied by the Court. Moreover, Mr. Kipkorir indicated that it was his intention to file an appeal based on the proceedings and judgment obtained from Court and was still within time. He asked for adjournment to enable him to lodge his appeal or cross-appeal if advised. He further wanted to cross check and examine wanted to cross check and examine the record of appeal and to see whether the proceedings and the judgment incorporated therein tally with those supplied by the superior court. While we commend Mr. Esmail for the expedition with which he lodged this appeal, we must also consider the interests of the first respondent and others. No doubt, the letter of 13th November, 2001 causes us some concern. Neither Mr. Kipkorir nor Mr. Le Pelley can be faulted. They were entitled to rely on it and by doing so the operative date for lodging of appeal is as shown thereon. They still had time and time for them had not run out to take any action they wished to.
For the above reasons this appeal is taken out of today's cause list and stood over generally to a new date to be fixed in the Registry. The costs occasioned by this adjournment shall be in the appeal in any event.
Dated and delivered at Nairobi this 5th day of December, 2001.
P. K. TUNOI JUDGE OF APPEAL
A. B. SHAH JUDGE OF APPEAL
M. Ole KEIWUA JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR