Makame JA:
On behalf of the applicant, Transcontinental Forwarders Ltd, Mr Kinguji learned advocate, has C applied to have the present respondent's Notice of Appeal struck out for offending Rule 76(2) of the Court of Appeal Rules, 1979 and for failure to comply with Rule 83(1) of the said Rules. The respondent's counsel is Mr Majithia learned advocate. D
It is common ground that the ruling by Msumi J (as he then was) sought to be appealed from was delivered on 29 May 1997. It is also agreed by both parties that the respondent filed a Notice of E Appeal on 12 June 1997. Mr Kinguji contends that that was on the fifteenth day and so out of time by one day, counting as he does from the day the Ruling was delivered, and so getting three days in May and twelve days in June, Mr Majithia asserts that he was just in time, having filed on the fourteenth day. He argues that one counts from the morrow of the event, excluding the day of the F event, in the present matter the day the Ruling was delivered, on the 29 May 1997.
Rule 76(2) Mr Kinguji is relying on indeed requires that a notice like this one should be lodged within fourteen days. Mr Majithia does not dispute that but contends that Rule 6 of the Court of Appeal G Rules governs the computation of the fourteen days. He cites Rule 6(d) but in my opinion the relevant portion of that Rule, for the purpose of the present issue, is sub-rule (a) which provides:
`a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day in which the event happens or the act or thing is done'. H
I am quite clear in my mind, even without resort to the Law of Limitation Mr Majithia sought to call in aid, that Rule 76(2) and Rule 6 must be read together and that, if that is done, there is no I
A conflict between the two, on a proper construction. The way to go about counting days and computing time scales is spelt out in Rule 6 and that has to be done for `any period of time fixed by these Rules ...', including of course Rule 76. With great respect therefore, I am unable to accept Mr Kinguji's submission that Rule 6 and Rule 76 conflict each other, 29 May 1997 is therefore not to be B counted in this instance in computing the fourteen days.
Mr Kinguji also urged that, in any event, the respondent tarried too long after filing the Notice of Appeal. He should have instituted his appeal within sixty days of filing the Notice, in accordance with C Rule 83. He did not do so, and it is now over six months since the High Court Ruling was delivered. The Notice of Appeal should therefore be deemed to have been withdrawn in terms of Rule 84.
Mr Majithia had a ready answer, and a correct one in my view to this second limb of Mr Kinguji's D argument: Mr Majithia submitted that he applied on 7 June 1997 for a copy of the proceedings etc and to-date he has not been furnished with any. He complied with the Rules by copying his letter to all the relevant parties, including the firm of Patel & Co, advocates to which Mr Kinguji evidently belongs. Mr Kinguji'sresponse to this was that Mr Majithia should not have kept quiet after his 7 E June letter. He should have kept on reminding the Registry. Mr Majithia said in fact he did. I wish to say only that reminding the Registry after applying for a copy of the proceedings etc and copying the request to the other party may indeed be the practical and realistic thing to do, but it is not a F requirement of the law. Once Rule 83 is complied with the intending applicant is home and dry.
The application before me is devoid of merit. It is accordingly dismissed with costs.
A
