[1998] KEHC 252 (KLR)
The High Court determined that it retains jurisdiction to extend the time for service of a notice of appeal under section 7 of the Appellate Jurisdiction Act. The court reasoned that the power to extend time for giving notice of intention to appeal necessarily includes the power to extend time for service of such...
Source-derived case information.
- Citation
- [1998] KEHC 252 (KLR)
- Parties
- Plaintiff: Wanjahi Gachau; Defendant: Mary Wanjiru & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1056 of 1995
- Procedural Posture
- Civil Application / Ruling on Application to Extend Time for Service of Notice of Appeal
- Outcome
- application granted
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Extension of Time, Service of Notice, Appellate Jurisdiction, Notice of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wanjahi Gachau
Plaintiff
Mary Wanjiru & Another
Defendant
Procedural Posture
Civil Application / Ruling on Application to Extend Time for Service of Notice of Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to extend time for service of a notice of appeal after judgment has been delivered.
- 2 Whether the failure to serve the notice of appeal within time can be remedied by extension of time.
Ratio Decidendi
The High Court determined that it retains jurisdiction to extend the time for service of a notice of appeal under section 7 of the Appellate Jurisdiction Act. The court reasoned that the power to extend time for giving notice of intention to appeal necessarily includes the power to extend time for service of such notice, as proper service is integral to the validity of the notice. The court further held that the amendment to Rule 41 of the Court of Appeal Rules does not remove the High Court's jurisdiction to entertain such applications. Consequently, the application to extend time for service of the notice of appeal was granted.
Court Disposition
application granted
Orders
- Time to serve the notice of appeal is extended by 14 days from the date of this ruling.
- The applicant shall pay the costs of this application.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 1056 OF 1995
WANJAHI GACHAU...............................................................PLAINTIFF
-versus-
MARY WANJIRU & ANOTHER.........................................DEFENDANT
R U L I N G
The application herein followed a notice of appeal following the judgment of this court delivered on 22nd April, 1997. Although the notice of appeal was filed in time service was not effected in time. The respondent was served out of time. There is now before me an application to extend the time within which to serve the said notice of appeal.
Under the appellate Jurisdiction Act Cap 9 Laws of Kenya section 7 thereof, the High Court may extend the time for giving the notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for certificate that the case is fit for appeal. It has been argued on behalf of the respondent that under the said section 7, this court lacks jurisdiction to extend the time within which to serve the notice of appeal. The applicant argued otherwise and submitted that this court has jurisdiction.
Whereas it is true that once this court delivers judgment it is fuctus officio, the matters related to notice of intention to appeal remain within the jurisdiction of the court until that notice is properly lodged. I believe therefore that if the court has power to extend the time for giving notice of intention to appeal from a judgment of the High Court, it has the same power to extend the time within which to serve the said notice. The case of giving notice of intention to appeal and service thereof are so intertwined that if there is no proper service of the said notice then no proper notice of intention to appeal is before the court. By Legal Notice No.11 of 1998 R41 of the Court of Appeal rules was amended to read that the said court may in its discretion entertain an application for stay of execution or extension of time for the doing any act authorised or required by those rules, notwithstanding the fact that no application has been made in the first instance to the superior court. My reading of this amendment would mean that the superior court has jurisdiction to entertain an application for extension of time for service of the notice of intention to appeal.
In the end I find that I have jurisdiction to grant this application which I hereby do.
I extend the time to serve the notice of appeal by 14 days from the date hereof. The applicant shall however pay costs of this application.
Dated and delivered at Nairobi this 14th day of May, 1998
A MBOGHOLI MSAGHA
JUDGE
Kyalo for 1st Respondent
Mr Mbugua for Akhaabi for applicant