Mfalila JA: A
This is an application for extension of time within which to file the appeal. The original appeal was struck out by this Court as being incompetent on the ground that no order had been extracted and filed with the appeal. The court then directed that it was open to the appellant in that appeal to institute the appeal afresh by making the appropriate applications. The appropriate application in such B circumstances is one for enlargement of time within which to institute the fresh appeal. The present application is such a one.
Mr Mwale learned Counsel for the first respondent opposed this application on two C grounds. First he said that the application itself is incompetent because it was filed under the wrong rule ie Rule 45 instead of Rule 8. Secondly he said that apart from negligence of Counsel for the applicant, there is no other reason for this delay.
With regard to the first ground, I would say that the omission of Rule 8 from the D heading of the notice of motion cannot affect the validity of the application because it is quite clear from the body of the application itself that it is for the extension of time which can only be made under Rule 8. The error can therefore rectified by simply inserting Rule 8 in the heading of the application, which step is hereby directed to be done. E
With regard to the second point, I am satisfied that a distinction should be made between cases involving real or actual delays and those like the present one which only involve what can be called technical delays in the sense that the original appeal was lodged in time but the present situation arose only because the original F appeal for one reason or another has been found to be incompetent and a fresh appeal has to be instituted. In the circumstances, the negligence if any really refers to the filing of an incompetent appeal not the delay in filing it. The filing of an incompetent appeal having been duly penalised by striking it out, the same cannot be used yet again to determine the timeousness of applying for filing the fresh appeal. In fact in the present case, the applicant acted immediately after the Gpronouncement of the ruling of this Court striking out the first appeal.
Secondly by implication this court was minded to give the applicant a second chance when it categorically told the applicant that it was open to him to institute a H fresh appeal by taking the necessary steps towards that goal.
For these reasons I allow this application and extend the time for filing or instituting a fresh appeal in accordance with the following time line: I
A (a) The applicant should file the notice of appeal within fourteen days from the date of this ruling.
(b) Thereafter the processing of the appeal including the timetable will be in accordance with the rules of this Court.
The costs of this application to be in the cause. B
1997 TLR p156
