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Court of AppealStruck OutCivil Appli. NAI No. 21 of 2006 (UR. 12/2006)· [2008] KECA 167 (KLR)

Haithar Haji Abdi & 2 others v Kenya National Capital Corporation Limited & another [2008] KECA 167 (KLR)

Court of Appeal of Kenya
11 July 2008
Philip Kiptoo TunoiP. K. TunoiEGE. M. GithinjiAAA. Aluoch
537 words in judgment
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The bottom line

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The Court of Appeal struck out a late reinstatement application, confirming the 30-day deadline under Rule 55(4) is strict, with the Christmas Vacation excluded from the count.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Tunoi, Githinji and Aluoch JJA) on an application under Rule 55(3) of the Court of Appeal Rules seeking reinstatement for hearing of an application dated 30th January 2006, which had been dismissed on 13th December 2007 for the non-attendance of the applicants' advocates. The applicants sought a stay of execution pending appeal against the ruling of Kasango J of 7th December 2005 in H.C.C.C. No. 447 of 2004. Both respondents opposed reinstatement, contending that the application was incompetent because it was filed beyond the 30 days stipulated by Rule 55(4). The court held that the advocates had been served with the hearing notice two months before the hearing and the underlying application was properly dismissed under Rule 55(1). Computing the 30-day period from 14th December 2007, and excluding the Christmas Vacation from 21st December 2007 to 13th January 2008, the court found the period expired on or about 5th February 2008. The reinstatement application, filed on 29th February 2008, was 24 days out of time and therefore incompetent. The court struck out the application with costs to the respondents. The decision affirms that Rule 55(4) time limits are mandatory and that the Christmas Vacation is excluded from their computation.

Key legal issues

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Whether the reinstatement application was competent as filed within the period prescribed by Rule 55(4)

Holding

The application was incompetent because it was filed 24 days after the expiry of the 30-day period prescribed by Rule 55(4), after excluding the Christmas Vacation from the computation.

Reasoning

The applicants' advocates were served with a hearing notice two months before the hearing but did not attend on 13th December 2007, and the application was dismissed under Rule 55(1). The 30-day period under Rule 55(4) began on 14th December 2007 but did not run during the Christmas Vacation from 21st December 2007 to 13th January 2008, resuming on 14th January 2008. On that computation the 30 days expired on or about 5th February 2008. The reinstatement application was filed on 29th February 2008, 24 days late, and was therefore incompetent and struck out.

p. 2

Legal principles established

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  • An application under Rule 55(3) of the Court of Appeal Rules to restore an application dismissed for non-attendance must be filed within 30 days of the decision, failing which it is incompetent; the Christmas Vacation is excluded from the computation of that period.

Court orders

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  1. 1.The application for reinstatement is struck out as incompetent
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 55(1)
  • Court of Appeal RulesRule 55(3)
  • Court of Appeal RulesRule 55(4)
On appeal from
High Court of Kenya, Milimani Commercial Courts, Nairobi
H.C.C.C. No. 447 of 2004
Jurisdiction invoked
Rule 55(3) of the Court of Appeal Rules

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, "Haithar Haji Abdi & 2 others v Kenya National Capital Corporation Limited & another [2008] KECA 167 (KLR)", Case Analysis (2008). Civil Appli. NAI No. 21 of 2006 (UR. 12/2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/167/eng@2008-07-11

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