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Court of AppealAllowedCivil Application No. NAI 337 of 2002· [2003] KECA 84 (KLR)

RE DIRECTOR OF FISHERIES EX-PARTE WANAINCHI MARINE PRODUCTS LIMITED [2003] KECA 84 (KLR)

Court of Appeal of Kenya
27 January 2003
ASA. B. Shah
197 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed an unopposed request to treat a late-served notice of appeal as served on time, keeping the Director of Fisheries' appeal alive.

What this practically means

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Executive summary

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This brief records a short, unopposed chambers order of the Court of Appeal at Mombasa, made on 27 January 2003 by Shah, JA, sitting as a Single Judge in chambers in Civil Application No. NAI 337 of 2002. The applicant was the Director of Fisheries; the Republic was the named respondent; and Wanainchi Marine Products Limited appeared as the ex-parte party. The application sought an extension of time to serve a notice of appeal upon the respondent in an intended appeal against the ruling and order of the High Court of Kenya at Mombasa (Ouna J) dated 30 September 2002 in H.C. Misc. Appln. No. 428 of 2002, a matter brought ex-parte by Wanainchi Marine Products Limited. The notice of appeal was dated 2 October 2002 and lodged on 3 October 2002, but it was actually served on 16 October 2002, apparently outside the prescribed period. The Single Judge recorded that Wanainchi Marine Products Limited did not oppose the application and granted it in full. He ordered that the notice of appeal be deemed to have been served in time, extending the time for service to 16 October 2002, the date of actual service, and awarded Wanainchi Marine Products Limited the costs of the application, to be taxed in the absence of agreement. The order contains no reasoning, cites no authority and no statute, and does not disturb the High Court's ruling, which was to be the subject of the intended appeal. Its outcome turned on the non-opposition of the ex-parte party rather than on any articulated criteria for extending time.

Key legal issues

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01

Whether the time for service of the notice of appeal in the intended appeal from the ruling and order of Ouna J in H.C. Misc. Appln. No. 428 of 2002 should be extended so that the notice is deemed to have been served in time.

Holding

The application was allowed in full. The notice of appeal dated 2nd October, 2002 and lodged on 3rd October, 2002 was deemed to have been served in time, the time for service being extended to 16th October, 2002, the date when it was actually served.

Reasoning

The order discloses no detailed reasoning. The Single Judge noted only that Wanainchi Marine Products Limited, the ex-parte party, did not oppose the application. On that basis he made the order sought, extending the time for service of the notice of appeal to the date of actual service, 16th October 2002, and deeming the notice to have been served in time as so extended. He also awarded the ex-parte party the costs of the application, to be taxed in the absence of agreement. No criteria for extension of time were discussed and no authority or statutory provision was cited.

p. 2

Legal principles established

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  • Where an application for extension of time to serve a notice of appeal is unopposed, a Single Judge of the Court of Appeal may deem the notice to have been served in time by extending the time for service to the date of actual service.

Court orders

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  1. 1.The notice of appeal dated 2nd October, 2002 and lodged on 3rd October, 2002 is deemed to have been served in time, the time for service being extended to 16th October, 2002, the date when it was actually served.
  2. 2.Wanainchi Marine Products Limited to have the costs of the application, to be taxed in the absence of agreement.
On appeal from
High Court of Kenya at Mombasa
H.C. Misc. Appln. No. 428 of 2002
Jurisdiction invoked
Not stated in the order. The Single Judge of the Court of Appeal (Shah, JA, in chambers) exercised the Court's power to extend time for service of a notice of appeal in an intended appeal from the High Court; no constitutional or statutory provision is cited in the text.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "RE DIRECTOR OF FISHERIES EX-PARTE WANAINCHI MARINE PRODUCTS LIMITED [2003] KECA 84 (KLR)", Case Analysis (2003). Civil Application No. NAI 337 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/84/eng@2003-01-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.