[2002] KECA 181 (KLR)
The court found that the defect in the copy of the decree included in the application—specifically, the inconsistency in the dates and the absence of a proper date indicating when the decree was 'given'—was a sufficiently grave procedural default. The applicant had already been penalised once for a similar default,...
Source-derived case information.
- Citation
- [2002] KECA 181 (KLR)
- Parties
- Applicant: Dr. Viram Gordhania; Respondent: Lake Nursing Home Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 241 of 2001
- Procedural Posture
- Civil Application / Application for Extension of Time to File and Serve Notice of Appeal and Record of Appeal Out of Time
- Outcome
- application dismissed with costs
- Judges
- D Ole Keiwua
- Legal Topics
- Extension of Time, Appeals Process, Procedural Defaults
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Dr. Viram Gordhania
Applicant
Lake Nursing Home Ltd
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File and Serve Notice of Appeal and Record of Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file and serve the notice of appeal and record of appeal out of time.
- 2 Whether the defect in the copy of the decree included in the application is sufficiently grave to warrant dismissal of the application.
Ratio Decidendi
The court found that the defect in the copy of the decree included in the application—specifically, the inconsistency in the dates and the absence of a proper date indicating when the decree was 'given'—was a sufficiently grave procedural default. The applicant had already been penalised once for a similar default, and the failure to rectify the defect in the current application could not be overlooked. The court held that compliance with procedural requirements, particularly the inclusion of a valid and properly dated decree, is essential for the grant of an extension of time. As the applicant failed to meet this requirement, the application for extension of time was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file and serve the notice of appeal and record of appeal out of time is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: KEIWUA, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 241 OF 2001 (KSM. 40/01)
DR. VIRAM GORDHANIA............................................APPLICANT
AND
LAKE NURSING HOME LTD....................................RESPONDENT
(An application for extension of time to file and serve Notice of Appeal and Record of Appeal out of time from the decision of the High Court of Kenya at Kisumu (Hon. Justice Wambilyangah) delivered on 12/10/1999 in H.C.C.C. NO. 423 OF 1994 ********************
RULING:
This is an application for extension of time within which to file and serve the notice of appeal and record of appeal out of time. There was an appeal which had been struck out on 21st June, 2001 and the application was filed in Court on 29th June, 2001. That was without any delay. The reason why the earlier appeal was struck out was because the copy of the decree appealed from was undated. For that reason the applicant had been penalised by having the appeal struck out. He should not be punished a second time for that particular default. I say this because the copy of the decree which has been included in the application is not free from faults either.
That much is conceded by Mr. Kasamani counsel for the applicant who prays that his application for extension of time be allowed on condition that he would make sure that a proper copy of the decree is included in the proposed record of appeaIlt. is common ground that the copy of the decree in the application does not have the date on which it was "given" by the learned Judge. According to the respondent, the applicant had a dated copy of the decree included in the earlier record of appeal. That decree had not to date been set aside to pave the way for yet another dated copy of the same decree being obtained. To my mind that is a major default which cannot be ignored at this stage.
I agree that the copy of the decree in the application is defective as it is shown to be dated 12th October, 1999 when judgment was delivered. Yet it is shown to have been given on 14th December, 1999. In my judgment that defect is sufficiently grave to dispose of the application. In that circumstance, I dismiss the application with costs.
Dated and delivered at Kisumu this 12th day of March, 2002.
M. OLE KEIWUA
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR