[1998] KECA 23 (KLR)
The court held that the application for extension of time to file and serve the record of appeal would be futile in the absence of a valid notice of appeal or an application for extension of time to lodge such notice. The court found no harm in adjourning the application sine die, pending the outcome of the...
Source-derived case information.
- Citation
- [1998] KECA 23 (KLR)
- Parties
- Appellant: Vihiga Millers & Highes Ltd; Respondent: Nifreda Mudola
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 23 of 1998
- Procedural Posture
- Civil Application / Application for Extension of Time to File and Serve Record of Appeal
- Outcome
- Application adjourned sine die with liberty to the applicant to fix a fresh date if circumstances warrant. Costs reserved.
- Legal Topics
- Extension of Time, Notice of Appeal, Adjournment, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vihiga Millers & Highes Ltd
Appellant
Nifreda Mudola
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File and Serve Record of Appeal
Legal Issues
- 1 Whether the application for extension of time to file and serve the record of appeal is competent in the absence of a valid notice of appeal.
- 2 Whether the application should be adjourned pending the outcome of the restoration application regarding the notice of appeal.
Ratio Decidendi
The court held that the application for extension of time to file and serve the record of appeal would be futile in the absence of a valid notice of appeal or an application for extension of time to lodge such notice. The court found no harm in adjourning the application sine die, pending the outcome of the applicant's restoration application regarding the notice of appeal. If the restoration succeeds, the present application may proceed; if not, it will be spent and liable to be struck out. The court reserved the costs of the application.
Court Disposition
Application adjourned sine die with liberty to the applicant to fix a fresh date if circumstances warrant. Costs reserved.
Orders
- Hearing of the application is stood over sine die with liberty to the applicant to fix a fresh date if circumstances so warrant.
- Costs of the application are reserved.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI
Civil Appli 23 of 1998
VIHIGA MILLERS & HIGHES LTD ...........................................................................APPELLANT
AND
NIFREDA MUDOLA................................................................................................RESPONDENT
(Application for extension of time to file and serve Record of Appeal from the judgment of the High Court at Nairobi Mr. Justice Mbogholi Msagha dated 14th May, 1992
in
H.C.C.C. NO. 634 OF 1987)
*******************
RULING
When this application came up for hearing before me, Mr. Amolo for the applicant sought an adjournment of the hearing thereof pending the hearing and determination of his application for restoration to hearing of the application filed by the respondent. The application filed by the respondent was for striking out of the notice of appeal lodged by the present applicant on 28th May, 1992. That application was filed in court on 11th April, 1994 and was numbered as Civil application No. NAI.107 of 1994. The court allowed that application and struck and the said notice of appeal. At the time Civil Application No. NAI. 107 of 1994, came up for hearing there was no appearance for the present applicant (respondent there). Mr. Amolo says he is seeking restoration thereof pursuant to provision in rule 55(3) of the Rules of this court.
The application for adjournment was prompted by my pointing out to Mr. Amolo that without there being an application (before me in this application) for extension of time to lodge a fresh notice of appeal, the application would be an exercise in futility as there could not be granted extension of time to lodge a record of appeal, unless there was a proper notice of appeal or unless time was also sought for lodging notice of appeal.
Mr. Kiage for the respondent opposed the application for adjournment and sought striking out of the present application on the ground that the same is premature and hence incompetent.
Mr. Amolo's application for restoration to hearing of Civil Application No. NAI. 107 of 1994 is fixed for hearing, I was told, on 11th October, 1998.
I see no harm in adjourning this application at this stage as, if Mr. Amolo succeeds on 11th October, 1998 in having restored that application to hearing and if he thereafter succeeds on merits, this application would stand to be heard. If he does not succeed, this application would stand spent and liable to be struck out.
In the circumstances I stand over the hearing of this application sine die with liberty to the applicant to fix a fresh date if circumstances so warrant.
Costs of this application are hereby reserved.
Dated and delivered at Nairobi this 5th day of October, 1998.
A. B. SHAH
.............
JUDGE OF APPEAL.