Teinainano Urban Council v Tewera [2019] KIHC 66; Miscellaneous Application 55 of 2019 (4 July 2019)

IN THE HIGH COURT OF KIRIBATI 2019

MISCELLANEOUS APPLICATION NO. 55 OF 2019
(ARISING FROM HIGH COURT CIVIL CASE NO. 25 OF 2019)

[TEINAINANO URBAN COUNCIL APPLICANT
[
BETWEEN [AND
[
[TERIBAURI TEWERA RESPONDENT

Before: The Hon Chief Justice Sir John Muria

4 July 2019

Mr Monoo Mweretaka for Applicant
Ms Kiata Kabure for Respondent

RULING

Muria, CJ: This is an application by the defendant for extension of time to appeal against the decision of this Court made on 20 August 2018. At the time of the hearing before the Commissioner of the High Court, the defendant was represented by Mr Berina. The Judgment was delivered in open Court on
20 August 2018.

2. At the commencement of the hearing of this application, Ms Kabure of Counsel for the plaintiff raised the issue of jurisdiction. Counsel submitted, relying on the reading of Rules 15, 16, 26 and 27 of the Court of Appeal Rules, the High Court does not have jurisdiction to hear this present application.

3. Mr Mweretaka of Counsel for the applicant/defendant submitted that the High Court has jurisdiction to hear application for extension of time to appeal to the Court of Appeal. I agree. However the High Court’s power to extend time to appeal to the Court of Appeal is subject to Rule 27 of the Court of Appeal Rules. Rule 27 provides as follows:

“27. Without prejudice to the power of the Court of Appeal, under the High Court Rules as applied to the Court of Appeal, to enlarge the time prescribed by any provision of these Rules, the period for filing and serving notice of appeal under rule 16 of these Rules may be extended by the Court below upon application made before the expiration of that period”.

4. Ms Kabure’s argument must succeed in this case. The power of the High Court to extend time to appeal to the Court of Appeal can only be exercised by the High Court “upon application made before the expiration of that period” allowed for filing and serving notice of appeal under rule 16 of the Court of Appeal Rules. Outside that period, the High Court is functus officio. Only the Court of Appeal has the power to deal with application for extension of time brought outside the time limit for appeal as set by rule 16 of the Court of Appeal Rules.

5. Application by the defendant/application for extension of time is refused.

Dated the 4^th day of July 2019

SIR JOHN MURIA
Chief Justice