[1998] KECA 214 (KLR)
The court found that although a delay of one day in lodging an appeal is not necessarily inordinate, it is not automatically excusable and must be justified by the circumstances of each case. In this instance, the applicants did not advance any special circumstances to explain the delay. However, since the...
Source-derived case information.
- Citation
- [1998] KECA 214 (KLR)
- Parties
- Applicant: Saltec International Limited; Applicant: Salt Manufacturers (K) Limited; Respondent: Industrial Development Bank Limited; Respondent: Industrial & Commercial Development Corporation; Respondent: Minority Shareholders
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 320 of 1997
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- Application for extension of time granted; costs awarded to respondents.
- Legal Topics
- Extension of Time, Appeal Lodgment, Court Discretion, Delay in Filing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saltec International Limited
Applicant
Salt Manufacturers (K) Limited
Applicant
Industrial Development Bank Limited
Respondent
Industrial & Commercial Development Corporation
Respondent
Minority Shareholders
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicants have provided sufficient reason for the court to exercise its discretion to extend time for lodging an appeal by one day.
- 2 Whether the delay of one day in filing the appeal is excusable under the circumstances.
Ratio Decidendi
The court found that although a delay of one day in lodging an appeal is not necessarily inordinate, it is not automatically excusable and must be justified by the circumstances of each case. In this instance, the applicants did not advance any special circumstances to explain the delay. However, since the respondents did not seriously oppose the application and the appeal had already been filed, the court exercised its discretion to grant the extension of time, deeming the appeal as properly lodged within the extended period. The court also awarded costs of the application to the respondents.
Court Disposition
Application for extension of time granted; costs awarded to respondents.
Orders
- Time for lodging the appeal is extended to 16th December, 1997; the appeal is deemed to have been lodged within the extended time.
- Costs occasioned by the application are awarded to the respondents in any event.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Gicheru, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 320 OF 1997
BETWEEN
1. SALTEC INTERNATIONAL LIMITED
2. SALT MANUFACTURERS (K) LIMITED....................APPLICANTS
AND
1. INDUSTRIAL DEVELOPMENT BANK LIMITED
2. INDUSTRIAL & COMMERCIAL DEVELOPMENT CORPORATION
3. MINORITY SHAREHOLDERS.............................RESPONDENTS
(Application for extension of time to file an appeal in an intended appeal from a Ruling and order of the High Court of Kenya at Nairobi (Ole Keiua, J.) dated 21/6/1995 in H.C.C.C. NO. 2096 OF 1991) ************************
RULING:
In this motion, the applicants seek extension of time within which to lodge their appeal in this Court which, according to their counsel, Mr. Vadgama, was filed in this Court on 16th December, 1997. From the certificate of delay annexed to the affidavit in support of the applicants' application, the applicants received certified copies of the proceedings and the ruling intended to be appealed from on 16th October, 1997. Having lodged that appeal on 16th December, 1997, it would appear that the applicants were one day outside the sixty days period prescribed by rule 81(1) of the Rules of this Court for lodging an appeal in this Court. This delay, according to counsel for the applicants, was not inordinate. On account of this therefore, counsel prays that the applicants' application be granted.
Whereas counsel for the respondents seem to have left to the court the issue of whether or not the delay of one day in lodging the appeal is excusable, they each are of the view that the costs occasioned by the applicants' application should respectively be awarded to them. In other words, save for the award of costs, the respondents do not appear to strenuously oppose the applicants' application.
Although the delay of one day in lodging an appeal in this Court may certainly not be inordinate, it may not always be excusable. Each such delay may depend on the peculiar circumstances of each such application for extension of time before the exercise of discretion by this court under rule 4 of the Rules of this Court. No such circumstances have been urged on behalf of the applicants in the present application.
Nonetheless, the application being not so seriously opposed by the respondents and the appeal having already been filed, I would in the exercise of my discretion under rule 4, supra, grant the applicants' application and extend time for lodging their appeal to 16th December, 1997 so that the said appeal be deemed to have been lodged within the extended time. However, the costs occasioned by the applicants' application are awarded to the respondents in any event.
Dated and delivered at Nairobi this 20th day of March, 1998.
J.E. GICHERU
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR