Mathingira Wholesalers Company Limited v Lucy Mwai and Company Advocates (Civil Application E027 of 2021) [2024] KECA 1029 (KLR) (24 May 2024) (Ruling)
- Court
- Court of Appeal
- Case number
- 1029
- Citation
- [2024] KECA 1029 (KLR)
- Decided
- 24 May 2024
The application to strike out the notice of appeal was not brought within the thirty-day period provided by Rule 86 of the Court of Appeal Rules, 2022.
Facts
The applicant, Mathingira Wholesalers Company Limited, sought to have the respondent's notice of appeal struck out due to it being filed out of time. The respondent, Lucy Mwai and Company Advocates, filed the notice of appeal on 26th February, 2021, and the impugned ruling was delivered on 10th February, 2021.
Issues
- Whether the notice of appeal was filed out of time
- Whether the application to strike out the notice of appeal was brought within the prescribed time frame
Reasoning
The Court held that the notice of appeal was filed out of time due to an arithmetic error in calculating the calendar days. The application to strike out the notice of appeal was filed four days outside the 30-day period provided by the proviso to Rule 86 of the Court of Appeal Rules.
Outcome
The application was dismissed.
Orders
- The notice of appeal filed by the respondent on 26th February, 2021, was not struck out.
- The applicant was not granted an extension of time to file the notice of appeal.
Authorities cited
Legislation (2)
- Court of Appeal Rules, 2022
- Appellate Jurisdiction Act
Cases cited (2)
- Salama Beach Hotel Limited & 4 others v Kenyariri & Associates Advocates & 4 others [2016] eKLR
- Michael Mwalo v. Board of Trustees of National Social Security Fund [2014] eKLR
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