[2002] KECA 124 (KLR)
The court held that the applicants should not be penalized for procedural errors committed by their counsel, particularly as there was no delay in bringing the application for extension of time and the respondent had already been compensated by costs. The matter in dispute involves land and raises weighty issues,...
Source-derived case information.
- Citation
- [2002] KECA 124 (KLR)
- Parties
- Applicant: Cecilia Gathoni; Applicant: Harun J. M. Thairu; Respondent: George Kariuki Kabugu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 360 of 2001
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Right of Appeal, Procedural Errors, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecilia Gathoni
Applicant
Harun J. M. Thairu
Applicant
George Kariuki Kabugu
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicants should be granted leave to file a notice of appeal and record of appeal out of time.
- 2 Whether procedural errors by counsel justify denial of the right of appeal.
- 3 Whether the absence of delay and compensation by costs warrants extension of time.
Ratio Decidendi
The court held that the applicants should not be penalized for procedural errors committed by their counsel, particularly as there was no delay in bringing the application for extension of time and the respondent had already been compensated by costs. The matter in dispute involves land and raises weighty issues, and justice demands that the applicants be allowed to pursue their appeal. Accordingly, the court exercised its discretion to grant leave to file the notice of appeal and record of appeal out of time, setting specific timelines for compliance.
Court Disposition
application allowed
Orders
- Leave is granted to the applicants to lodge the Notice of Appeal out of time within 7 days.
- The record of appeal shall be lodged within 21 days after service of the Notice of Appeal.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: TUNOI, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 360 OF 2001
BETWEEN
CECILIA GATHONI ........................................... 1ST APPLICANT
HARUN J. M. THAIRU .................................... 2ND APPLICANT
AND
GEORGE KARIUKI KABUGU .............................. RESPONDENT
(Applicationof extension of time to file a record of appeal and notice of appeal out of time in an intended appeal from the judgment of the High Court of Kenya at Nairobi (Keiwua, J) dated 7th June, 1995 in H.C.C.C. NO. 307 OF 1995 (O.S.)) ***************************
R U L I N G:
This is an application for leave to file a notice of appeal and record of appeal out of time.
This matter had been canvased before me way back in 1996 and has thereafter come to this Court on several occasions. The facts underpinning the application are well known and I need not rehash them. Suffice it to say, however, that the appeal was struck out on 12th October, 2001 and this application was lodged a week later. The speed at which the application was filed is a clear indication of the determination by the applicants to have the matter in issue finally resolved by this court. I think they should have the rightT hteo bdei shpeuatred . involves land and it is said that wrong procedures were followed to obtain the orders the subject of the intended appeal. I think that, certainly, the issues to be raised therein would be weighty.
The applicants' counsel may have committed grave errors in having the appeal struck out but the respondent has been compensated for by way costs. There is no delay involved herein. The applicants are not by themselves responsible for errors of procedure. They should not be denied their right of appeal. The dictates of justice demand that I allow the application and I do so. Leave is hereby granted to the applicants to lodge the Notice of Appeal out of time. They should do so within 7 days hereof. The record of appeal shall be lodged within 21 days after service of the Notice of Appeal. The costs occasioned by this application shall be in the intended appeal in any event.
Dated and delivered at Nairobi this 9th day of May, 2002.
P. K. TUNOI
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR