Case Metadata |
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| Case Number: | Civil Appeal 55 of 1975 |
|---|---|
| Parties: | Abdul Aziz Ngoma v Mungai Mathayo & Thuo Macharia |
| Date Delivered: | 20 Feb 1976 |
| Case Class: | Civil |
| Court: | Court of Appeal at Mombasa |
| Case Action: | Judgment |
| Judge(s): | Eric John Ewen Law, Abdulla Mustafa, Samuel William Wako Wambuzi |
| Citation: | Abdul Aziz Ngoma v Mungai Mathayo & another [1976] eKLR |
| Court Division: | Civil |
| Parties Profile: | Individual v Individual |
| County: | Mombasa |
| Case Summary: | Abdul Aziz Ngoma v Mungai Mathayo & another Court of Appeal for East Africa, Mombasa 20th February 1976 Wambuzi P, Law V-P & Mustafa JA Time – extension of time limit – grounds for extension – failure to serve document in time – memorandum of appeal and record of appeal to Court of Appeal for East Africa – no sufficient reason to grant application to extend time. Failure by an advocate to undertake procedural steps before the Court of Appeal for East Africa, such as the service of the memorandum of appeal and the record of appeal on the respondent, within the time limit prescribed by the Rules of Court is fatal and any application for an extension of the time limit will be refused. The Court has no discretion to consider questions of prejudice and the prospects for success unless it is first shown that there is sufficient reason to extend the time limit. Shah Meghji Mulji Ltd v Shah Kanji Meghji (unreported), Court of Appeal for East Africa, followed. Cases referred to in judgment: Dodhia v National & Grindlays Bank Ltd [1970] EA 195. Shah Meghji Mulji Ltd v Shah Kanji Meghji (unreported) Civil Appeal No 51 of 1973, Court of Appeal for East Africa. Interlocutory application The appellant, Abdul Aziz Ngoma, having failed to serve the memorandum of appeal and the record of appeal (in Civil Appeal No 55 of 1975) on the respondents, Mungai Mathayo and Thuo Macharia, in the time prescribed by the Rules of Court in respect of his appeal from the decision of Sheridan J in the High Court at Mombasa on 9th September 1975 (Civil Case No 236 of 1974) applied to the Court of Appeal for East Africa for an extension of time in which to serve the memorandum and record. The respondents applied to have the appeal struck out. The facts are set out in the judgment of the court. AYA Jiwaji (instructed by Jiwaji & Jiwaji) for the Appellant. MAC Satchu (instructed by Atkinson, Cleasby & Satchu) for the Respondents. |
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IN THE COURT OF APPEAL FOR EAST AFRICA
AT MOMBASA
(Coram: Wambuzi P, Law V-P & Mustafa JA)
CIVIL APPEAL NO 55 OF 1975
ABDUL AZIZ NGOMA ……...…………….. APPELLANT
VERSUS
MUNGAI MATHAYO
THUO MACHARIA ………………..….. RESPONDENTS
(Appeal from Judgment and Decree of the High Court of Kenya at
Mombasa (Sheridan J.) dated 9th September 1975
in
(Civil Case No 236 of 1974)
JUDGMENT
We have before us for decision two applications, which have been consolidated. The first is by the respondents in this appeal asking that the appeal be struck out as incompetent on the ground that the memorandum and record of appeal were not served on the respondents within seven days of filing as required by rule 87 of the rules of this court. The second application is by the appellant and it asks for a sufficient extension of time to validate the service.
The facts are briefly that the memorandum and record of appeal were filed in the Mombasa sub-registry of this court on 15th November 1975.
By rule 87:
The appellant shall before or within seven days after lodging the memorandum of appeal and the record of appeal … serve copies thereof on each respondent.
In fact, service of these documents was not effected until 29th December 1975.
Mr Jiwaji for the appellant has been unable to point to any sufficient reason within rule 4 of the Rules of this Court to justify the exercise by this Court of its discretion to extend time. He submitted, however, that in the absence of any prejudice caused by the delay in effecting service and as the matter was purely procedural and not of substance, it would be a denial of justice to the appellant not to grant him the necessary extension of time. We have considerable sympathy for these submissions and are reluctant to exclude an appellant because of a procedural error on the part of his advocate but we consider that we are bound by the decision of this court in Shah Meghji Mulji Ltd v Shah Kanji Meghji (unreported) in which this Court held that where no sufficient reason has been given for noncompliance with rule 87 this Court cannot extend time. Mr Jiwaji has invited us not to follow that decision, the facts of which are similar to the matter now under consideration. This Court, however, normally regards a previous decision of its own as binding (Dodhia v National & Grindlays Bank Ltd [1970] EA 195 and will only depart from a previous decision of its own if satisfied that it was given. No such consideration arises in the case of Shah Meghji Mulji Ltd, which is accordingly binding on this Court. It follows that, in our opinion, we have no other course open to us than to dismiss the appellant’s application for an extension of time, and to allow the respondents’ application to strike out the appeal as incompetent. We order accordingly. The respondents will have the costs of these consolidated applications and of the appeal.
We would like to state once again that this court’s discretion to extend time under rule 4 only comes into existence after “sufficient reason” for extending time has been established and it is only then that other considerations such as the absence of any prejudice and the prospects or otherwise of success in the appeal can be considered.
Order accordingly.
Dated at Mombasa this 20th Day of February 1976
S. W. W. WAMBUZI
…................……..
PRESISDENT
E. J. E. LAW
.........................
VICE-PRESIDENT
A. MUSTAFA
……..........……
JUDGE OF APPEAL
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