[2003] KECA 99 (KLR)
The court found that the applicant's explanation for the delay, namely the lack of service of notice of the date of the ruling, was uncontroverted as the respondent did not file any replying affidavit. The court exercised its discretion under rule 4 of the Court of Appeal Rules to extend the time for filing the...
Source-derived case information.
- Citation
- [2003] KECA 99 (KLR)
- Parties
- Applicant: Timothy Missiani Orwenyo; Respondent: Transpares Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 362 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals, Default Judgment, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Missiani Orwenyo
Applicant
Transpares Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file a notice and record of appeal out of time.
- 2 Whether failure to serve notice of the ruling justified the delay in filing the notice of appeal.
Ratio Decidendi
The court found that the applicant's explanation for the delay, namely the lack of service of notice of the date of the ruling, was uncontroverted as the respondent did not file any replying affidavit. The court exercised its discretion under rule 4 of the Court of Appeal Rules to extend the time for filing the notice of appeal to include the date it was actually lodged. The court also directed service of the notice within seven days and the lodging of the record of appeal within thirty days thereafter. The applicant was ordered to pay the respondent's costs for the day, but no order was made as to the costs of the motion itself.
Court Disposition
application allowed
Orders
- Time for filing notice of appeal extended to include 11th March, 2002.
- Applicant to serve the notice of appeal within seven days of the ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
civil misc appl 362 of 02
TIMOTHY MISSIANI ORWENYO ............................ APPLICANT
AND
TRANSPARES LIMITED ............................... RESPONDENT
(An application for extension of time to file notice & record of appeal out of time in an intended appeal from the ruling of the High Court of Kenya at Mombasa (Comm Khaminwa) dated 20th February, 2002
in
H.C.C.C. NO. 41 OF 2000 [RD])
****************
R U L I N G
This is an application under rule 4 of the Court of Appeal Rules . The applicant, Timothy Missiani Orwenyo was the defendant in High Court Civil Case No. 41 of 2000. A judgment in default of appearance was entered against him. He unsuccessfully applied to have the said judgment set aside.
In the present application his case is that the ruling in the aforesaid application was to be delivered on notice, but that neither him nor his advocate were served with a notice of the date of the ruling. Consequently by the time he came to know of the ruling the time for filing a notice of appeal had elapsed. He later filed a notice of appeal though out of time and now prays that I exercise my judicial discretion under rule 4 above and enlarge the time to include the date the said notice was filed and served. Mr Abdi for the respondent stated before me that he intended to seek an adjournment but he did not bring the matter up until after counsel for the applicant had concluded his submissions. When I advised him that his request was clearly belated he urged me to determine the application on the basis of the material on record. As the respondent did not put in any replying affidavit, the applicant's case is uncontroverted. I have no basis for holding that what the applicant says in his affidavit in support of the application is unItnr uet.h e result I allow the application, extend the time within which to file a notice of appeal to include 11th March, 2002 when the notice of appeal of the same date was lodged with the High Court. The applicant to serve the same within seven days of today's date. The applicant to lodge his record of appeal within 30 days thereafter.
As for costs I consider it in the interests of justice that the applicant pays the respondent's today's costs assessed at KShs.500/= but make no order as to the costs of the motion.
Dated and delivered at Mombasa this 29th day of January, 2003.
S. E. O. BOSIRE
---------------
JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR