[1986] KECA 51 (KLR)
The court found that the delay in filing the notice of appeal was not due to any fault of the applicant but was caused by his former advocate's error in filing the notice in the wrong court. The applicant acted promptly upon learning of the High Court judgment. Given the complexity of the land dispute and the need...
Source-derived case information.
- Citation
- [1986] KECA 51 (KLR)
- Parties
- Applicant: Mbuthia Charagu; Respondent: Kiariri Kaguru
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 23 of 1986
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- Application allowed. Extension of time granted to file notice of appeal.
- Legal Topics
- Extension of Time, Notice of Appeal, Procedural Default, Land Dispute, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbuthia Charagu
Applicant
Kiariri Kaguru
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file a notice of appeal out of time.
- 2 Whether the delay in filing the notice of appeal was excusable and not attributable to the applicant.
Ratio Decidendi
The court found that the delay in filing the notice of appeal was not due to any fault of the applicant but was caused by his former advocate's error in filing the notice in the wrong court. The applicant acted promptly upon learning of the High Court judgment. Given the complexity of the land dispute and the need to ensure justice is seen to be done, the court exercised its discretion to grant an extension of time for the applicant to file the notice of appeal. The court emphasized that procedural errors by counsel should not unduly prejudice a party, especially in a matter involving significant land rights and where both parties were unrepresented at this stage.
Court Disposition
Application allowed. Extension of time granted to file notice of appeal.
Orders
- Extension of time granted to the applicant to file his notice of appeal within seven days, by June 12, 1985.
- In default, the notice of motion will stand dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Hancox, J.A. (In Chambers))
CIVIL APPLICATION NO. NAI 23 OF 1986
(In the, matter of an intended appeal)
BETWEEN
MBUTHIA CHARAGU.......................................................................APPLICANT
AND
KIARIRI KAGURU........................................................................RESPONDENT
(Application for leave to file a notice of appeal from an order of the High Court of Kenya at Nairobi (Gachuhi/Aganyanya, JJ.) dated-14th October, 1983 in ,High Court Civil Appeal No. 171 of 1977)
RULING
This is a very old land case from Kiambu. Both parties are in person, unrepresented. One is very old and the respondent appears to be blind as well.
Unfortunately the applicant’s counsel in the High Court, Mr Kamau, filed the Notice of Appeal which should have been to this Court, in the High Court by mistake, and this was not discovered until it came before Mrs Aluoch J in December, 1985. The high court judgment in this first appeal was dated October 28, 1983. The Notice of Motion for the matter was filed (in the High Court) on January 11, 1984. The only document on this file is an affidavit in support, and a Notice of Motion but both are, indeed, stamped in the High Court registry on January 11, 1984. This supports this applicant’s story.
The applicant says the time lapse was not his fault, as he had not been informed of the date of the judgement of the High Court and did not know of it till January 6, 1984. Thereafter, I am satisfied, the delay was not the applicant’s fault but that of his former advocate. The actual delay from the date when the Notice of Appeal was due (November 11, 1983) is thus exactly 2 months.
I have looked at both the proceedings before Mr O’Kubasu, Senior Resident Magistrate, as he then was, and the judgment of the High Court. This is a complicated land case and it would be unfortunate if justice was not fully seen to be done in the Court, to which Mr Mbuthia has sought to prefer an appeal. In the circumstances, despite the delay, I propose to exercise my discretion in favour of the applicant and to grant him necessary time to file his Notice of Appeal out of time in this Court.
The order I make is that an extension of time be granted to the applicant to file his Notice of Appeal. He is to file it within seven days in the registry, that is to say by June 12, 1985. In default the Notice of Motion will stand dismissed. I order the costs to go to the respondent in any event. These are fixed at Shs 250.
Dated at Nairobi this 5th day of June, 1986.
A.R.W.HANCOX
.................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR