Mwihoko Housing Co Limited v Equity Building

Society

Court of Appeal, at Nairobi December 22, 2000

Shah JA

Civil Application No NAI 192 of 2000

(Application for extension of time in an intended appeal from the Judgment of the High Court of Kenya at Nairobi (Githinji, J) dated 29th September, 1999 in HCCC No 5992 of 1992)

Civil Practice and Procedure – appeal – extension of time – time for filing and serving notice of appeal – factors to be considered in exercise of discretion to extend time.

By an application dated July 4, 2000 and brought under rule 4 of the Court of Appeal Rules, the applicant sought orders for extension of time to lodge an appeal against the judgment of the superior court delivered on September 29, 1999. The proceedings in the superior court had been conducted on behalf of the applicant by an advocate. The applicant lodged a notice of appeal to challenge the decision in person on October 12, 1999. A copy of the notice of appeal was delivered to the Court of Appeal on October 14, 1999. Having filed the notice of appeal, the applicant applied for certified copies of proceedings and judgment by a letter dated October 12, 1999 which was lodged in the superior court registry on October 14, 1999. The copies of proceedings and judgment were paid for on December 14, 1999 and the same were ready for collection and were infact collected on February 14, 2000. The applicant did not file the appeal by April 14, 2000. The reason given for so failing was that the file of the applicant’s previous advocates was not available to it on account of disagreement on certain unsettled issues. The application for extension on time was lodged on July 17, 2000. There were several third parties who had an interest in the suit and upon whom the notice of appeal was not served.

Held:

1. A notice of appeal has to be lodged in the superior court within 14 days of the delivery of the decision sought to be appealed against.

2. In an application for extension of time to file an appeal, it is not good enough to blame a previous advocate on record to say that his file was not availed to the applicant for some “unsettled issues”. The exact dispute, as far as possible, ought to be shown.

3. A notice of appeal should be served against all parties affected by the decision sought to be appealed against.

4. Although the Court of Appeal has unfettered discretion to extend time limited for filing an appeal, that discretion ought to be exercised only if circumstances of the case permit.

Application dismissed.

Cases

No cases referred to.

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 4, 76(1)

Advocates

Mr Letangule for the Applicant

Mr Kirundi and Miss Kamau for the Respondent

Air Alfaraj Limited v Raytheon Aircraft Credit

Corporation & another

Court of Appeal, at Nairobi December 21, 2000

Kwach, Shah & O’Kubasu JJ A

Civil Appeal (Application) No 29 of 1999

(An application to strike out and dismiss the Record of Appeal from the ruling and order of the High Court of Kenya at Nairobi (Mbogholi Msagha, J) given on 8^th October, 1998 in HCCC No 1611 of 1998)

Civil Practice and Procedure - preliminary objection – jurisdiction – issue of jurisdiction should be taken before delving into the merits of the application.

Advocate – conduct of advocate – advocate as an officer of the court - approbation and reprobation by advocate.

The applicant sought to have the appellant’s appeal struck out with costs for the reason that the order appealed against was not an order pursuant to the ruling of the superior court that had been delivered on October 8, 1998. The applicant’s argument was that the ruling by the superior court had arisen out of a preliminary objection and that, therefore, the order should have taken the form of a preliminary objection being overruled rather than arising out of the hearing of an application under order 39 of the Civil Procedure Rules. During the course of the hearing of the application, it emerged that counsel for the applicant had approved the order that he now sought to impugn.

Held:

1. Any issue regarding jurisdiction ought to be considered first so that in the event of the Court coming to the conclusion that it has no jurisdiction, the intellectual exercise of going into the merits of the application would be futile.

2. The conduct and etiquette at the Bar demands that counsel ought not to approbate and reprobate.

Application dismissed.

Cases

1. Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd  [1969] EA 696

2. Petro Sonko & another v H A D Patel & another (1955) 22 EACA 23

3. Kenya Breweries Limited v Kiambu General Transport Agency Limited Civil Appeal No 18 of 1999

4. Kenya Commercial Bank Limited v Tony Manaseh Esipesya Civil Appeal No 105 of 1998

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13; order XX rules 6(1), 7(b); order XXXIX rules 1, 2, 3, 5, 7

2. Civil Procedure Act (cap 21) section 3A

Advocates

Mr Ahmednasir for the Applicant

Mr Muigai for the Respondents