Mfalila, JA, delivered the following considered judgment of the Court:
This is a reference from the Ruling of Omar, JA in Civil Application No 2 of 1993 in C which the applicant Ahmed Issa Khalfani, the present respondent, sought to have the respondents' notice of appeal struck out. In that application, the applicant alleged that the respondents, Mohamed Amour Khalid and Mahamoud Ayub Ibrahim, the present applicants, had filed their notice of appeal without serving the D same on him and that subsequently they failed to take an essential step timeously ie they did not institute the appeal within the prescribed period. Omar, JA found after scrutinising the records in the respondents' possession that the notice of appeal had in fact been served on the applicant but that the respondents had failed to institute the appeal within sixty days after being supplied with the copy of E proceedings. He therefore granted the application and struck out the notice of appeal.
The applicants were aggrieved by this decision and filed this reference on the basis that they failed to institute the appeal in time because they did not have the F money to meet the costs, and that they came to Court to file the appeal as soon as they acquired the necessary funds.
At the hearing of this reference, both applicants conceded that on the facts there was nothing wrong with the decision of the single judge, but they argued that they G should be allowed to proceed with their appeal because the reasons which prevented them from instituting the appeal on time were beyond their control, in that they lacked the necessary funds to pay for the appeal and they were ignorant of the law as to the steps to be taken in such circumstances. The respondent, no H doubt in view of the applicants' concessions on the correctness of the decision of the single judge, said he had nothing to say.
The reasons which the applicants gave for not instituting the appeal in time, could have been relevant if this were an application for enlargement of time. In this application we are only dealing with I
A the question of striking out the notice of appeal for failure to take an essential step in time. We agree with the findings of the learned single judge that the notice of appeal was served on the present respondent in time and that the application for the copy of proceedings was in writing and was copied to the respondent. But since the proceedings were supplied to the applicants on 28 January 1993, they Bshould have instituted the appeal within sixty days ie by 29 March 1993. They did not do so until 5 August 1993, almost five months out of time. In these circumstances the learned single judge did not have any other alternative except to allow the application and strike out the notice of appeal. Indeed as we have already C indicated the applicants have conceded as such.
For these reasons we dismiss this reference with costs.