[2000] KECA 393 (KLR)
The court held that the application for extension of time must be dismissed because the intended appeal is incompetent. No appeal was preferred from the preliminary decree of 28 November 1997, and therefore, under section 68 of the Civil Procedure Act, an appeal from the final decree is barred. Additionally, the...
Source-derived case information.
- Citation
- [2000] KECA 393 (KLR)
- Parties
- Applicant: Trade Bank Limited (In Liquidation); Respondent: L.Z. Engineering Construction Limited; Respondent: Yaya Towers Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 117 of 2000
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to Lodge Notice and Record of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Process, Res Judicata, Preliminary Decree, Final Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trade Bank Limited (In Liquidation)
Applicant
L.Z. Engineering Construction Limited
Respondent
Yaya Towers Limited
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to Lodge Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant is entitled to an extension of time to lodge a notice of appeal and record of appeal.
- 2 Whether an appeal from the final decree is barred by section 68 of the Civil Procedure Act due to no appeal being preferred from the preliminary decree.
- 3 Whether the intended appeal is barred by the doctrine of res judicata.
Ratio Decidendi
The court held that the application for extension of time must be dismissed because the intended appeal is incompetent. No appeal was preferred from the preliminary decree of 28 November 1997, and therefore, under section 68 of the Civil Procedure Act, an appeal from the final decree is barred. Additionally, the intended appeal is barred by the doctrine of res judicata, as the issues sought to be appealed have already been determined in the preliminary decree. The court also referenced its earlier ruling in Civil Application No. NAI 115 of 2000, reinforcing the decision to dismiss the application. Consequently, the application for extension of time was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to lodge a notice of appeal and record of appeal is dismissed with costs.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: LAKHA, J.A. (IN CHAMBERS))
CIVIL APPLICATION NO. NAI. 117 OF 2000
BETWEEN
TRADE BANK LIMITED (IN LIQUIDATION) .........................APPLICANT
AND
L.Z. ENGINEERING CONSTRUCTION LIMITED....... 1ST RESPONDENT
YAYA TOWERS LIMITED ......................................... 2ND RESPONDENT
(Application for extension of time for lodging a Notice of Appeal and Memorandum and Record of Appeal in the matter of an intended appeal from the Judgment & Decree of the High Court of Kenya at Nairobi (Pall, J.A.) delivered on the 9th day of January, 1998
In H.C.C.C. NO. 3791 OF 1993) **************
R U L I N G
No application has been made before me in this application for my disqualification. Nor has any material been placed before me, by consent or otherwise, to enable me to decide on such an issue. If, however, it was taken, my decision on this issue in the earlier application applies. Quite apart from all that, in my judgment, the intended appeal is bound to fail on the following grounds:-
(a) No appeal having been preferred from the preliminary decree of 28 November 1997, an appeal from the final decree as is intended is barred by section 68 of the Civil Procedure Act; and/or
(b) The intended appeal is also barred by res judicata because of the findings already made in the preliminary decree of 28 November 1997: See MBURU KINYUA V. GACHIMI TUTI [1978] KLR 69.
For the reasons above stated in addition to those given in my ruling delivered this morning in Civil Application No. NAI 115 of 2000 KAPLAN & STRATTON V. L.Z. ENGINEERING CONSTRUCTION LTD & 2 OTHERS, I also dismiss this application with costs.
Dated and delivered at Nairobi this 14th day of August, 2000.
A.A. LAKHA
..................
JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR