Shadrack Abraham Kisongoch v Kenya Airports Authority [2015] KECA 65 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MARAGA, AZANGALALA & KANTAI JJ.A)

CIVIL APPLICATION NO. 83 OF 2014

BETWEEN

SHADRACK ABRAHAM KISONGOCH.........................APPLICANT

AND

KENYA AIRPORTS  AUTHORITY.............................RESPONDENT

(An Application to strike out the Notice of Appeal dated 23rd November 2014and filed

on 24th September 2014being an intended appeal from the judgment of the

High Court of Kenya at Kisumu,Industrial Court (Wasilwa, J.)

dated 17th  September, 2014

in

INDUSTRIAL CAUSE NO. 20 OF 2014)

*****************************

RULING OF THE  COURT

1. This is an application brought under Rules 42(1), 43(1), 83and 84 of the Court of Appeal to strike out the respondent's notice of appeal dated 23rd September, 2014 and lodged in court the following day.

2. The application is premised on the ground that the record of appeal filed pursuant to that notice of appeal was filed out of the prescribed period without leave of court.

3. According to counsel for the applicant, the High Court proceedings having  been ready for collection on 31st  October  2014,  even  after excluding the Christmas vacation when, as stated in Order 50 Rule 4 of the Civil Procedure  Rules,time  does  not  run  for  purposes  of filing  pleadings  in civil cases, the respondent  should  have filed its record of appeal by 22nd January 2015.

4. The  proviso to Rule 82(1)  of  the  Court of Appeal Rules  read together with sub-rule (2) of that Rule provides that where the letter bespeaking of proceedings  is filed in court within thirty days of the date of the  decision  sought to be appealed  and  a  copy  thereof  is served upon the respondent, as was done in this case, for purposes of filing the record  of appeal, time starts to run from the  date  of "delivery"  of the proceedings.

5. In this case, as stated on the certificate of delay a copy of which is annexed to  the replying affidavit,  proceedings  were  delivered  to counsel for the  respondent   on   19th November,  2014.  In the circumstances,  and excluding  the 2014 Christmas  vacation,  the last date for filing the record of appeal in this case was 9th  February, 2015 but  the  same  was  filed  on  21st January,   2015.      Counsel  for  the applicant  himself  conceded  that  if  we  find,  as  we  have,  that  time started running on 19th  November 2014,  then the record in this appeal was filed in time.  Consequently we find no merit in this application and we accordingly dismiss it with costs.

DATED and delivered at Kisumu  this 14th day of May, 2015.

D.K.MARAGA

.................................

JUDGE OF APPEAL

F. AZANGALALA

.................................

JUDGE OF APPEAL

S. ole KANTAI

.................................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY  REGISTRAR