[2002] KECA 244 (KLR)
The court found that the applicant had filed the notice of appeal within the prescribed time but failed to serve it on the respondents within seven days as required by rule 76 of the Court of Appeal Rules. The reason for non-compliance was inadvertence by counsel, which the court accepted as a genuine error. The...
Source-derived case information.
- Citation
- [2002] KECA 244 (KLR)
- Parties
- Applicant: Peter G. N. Ng'ang'a; Respondent: Standard Chartered Bank of Kenya Ltd; Respondent: Harrison Maina Kariuki
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 248 of 2002
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to Serve Notice of Appeal
- Outcome
- application granted
- Legal Topics
- Extension of Time, Notice of Appeal, Court of Appeal Rules, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter G. N. Ng'ang'a
Applicant
Standard Chartered Bank of Kenya Ltd
Respondent
Harrison Maina Kariuki
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension 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 out of time.
- 2 Whether inadvertence of counsel constitutes sufficient reason for extension of time.
Ratio Decidendi
The court found that the applicant had filed the notice of appeal within the prescribed time but failed to serve it on the respondents within seven days as required by rule 76 of the Court of Appeal Rules. The reason for non-compliance was inadvertence by counsel, which the court accepted as a genuine error. The court saw no reason not to exercise its discretion in favour of the applicant, holding that the interests of justice would be served by granting the extension. Accordingly, the application for extension of time was allowed, and the applicant was ordered to serve the notice of appeal within four days from the date of the ruling.
Court Disposition
application granted
Orders
- The applicant shall serve the notice of appeal already lodged to the respondents within 4 days from the date of this ruling.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI (CORAM: OWUOR, J.A (IN CHAMBERS)
CIVIL APPLICATION NO. NAI 248 OF 2002 (124/2002 UR)
BETWEEN
PETER G. N. NG'ANG'A .................................APPLICANT
AND
1. STANDARD CHARTERED BANK OF KENYA LTD)
2. HARRISON MAINA KARIUKI )...............RESPONDENTS
(Application for extension of time to serve Notice of appeal out of time from the Judgment and decree of the High Court of Kenya at Nairobi (Mr. Justice Mwera) dated 5th July, 2002
in
H.C.C.C NO. 1037 OF 2000) ******************
R U L I N G
In this application filed under the provision of rule (4) of the Rules of this Court, the applicant seeks an extension of time for him to be enabled to serve a Notice of appeal on the respondent in terms of rule 76.
The ruling he intends to appeal against was in respect of a preliminary point taken in the proceedings in the superior court delivered on the 5th day of July, 2002. The Notice of appeal was filed on 12th July, 2002, well within the time prescribed. However, he did not serve the Notice of appeal on the respondents within seven days from the date of lodging the same in court. It is on this basis that he seeks for an extension of that period to be able to serve the Notice of appeal.
The reason given for non-compliance with rule 76 both in the affidavit sworn in support of the Notice of motion and the submission before me is that counsel through inadvertence erred and did not serve the notice as required. It was an error in his part. I accept what he says and see no reason why I should not exercise my discretion in the applicant's favour. In this regard, this application is hereby granted. The applicant shall serve the Notice of appeal herein already lodged, to the respondents within 4 days from todays date.
Dated and delivered at Nairobi this 1st day of October, 2002.
E. OWUOR ............... JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR