[1984] KECA 76 (KLR)
The court found that although the first applicant left the country knowing judgment was imminent and failed to leave instructions with his advocate, the delay in filing the application for extension of time was not substantial (16 days). The court recognized that a notice of appeal is a simple, formal document that...
Source-derived case information.
- Citation
- [1984] KECA 76 (KLR)
- Parties
- Applicant: Cleophas Masinde Simiyu; Applicant: Kata Biketi; Respondent: Maurice Barasa Watambamala; Respondent: Francis Nyukuri; Respondent: Fred Wafula Watambamala; Respondent: Angara Juma Watambamala
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 40 of 1983
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- Extension of time to file notice of appeal granted; respondents awarded costs of the application.
- Legal Topics
- Extension of Time, Notice of Appeal, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cleophas Masinde Simiyu
Applicant
Kata Biketi
Applicant
Maurice Barasa Watambamala
Respondent
Francis Nyukuri
Respondent
Fred Wafula Watambamala
Respondent
Angara Juma Watambamala
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicants have shown sufficient cause for extension of time to file a notice of appeal.
- 2 Whether the delay in filing the application for extension was inordinate or excusable.
- 3 Whether the absence of instructions to the advocate justified the failure to file the notice of appeal on time.
Ratio Decidendi
The court found that although the first applicant left the country knowing judgment was imminent and failed to leave instructions with his advocate, the delay in filing the application for extension of time was not substantial (16 days). The court recognized that a notice of appeal is a simple, formal document that could have been filed as a matter of prudence by the advocate. However, considering the relatively short delay and the applicants' plea regarding being kept out of their land, the court exercised its discretion under Rule 4 to grant an extension of time to file the notice of appeal. The respondents were awarded the costs of the application.
Court Disposition
Extension of time to file notice of appeal granted; respondents awarded costs of the application.
Orders
- Extension granted until 2nd March to file the Notice of Appeal.
- Respondents to have the costs of this application.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Hancox, J A (In Chambers) CIVIL APPLICATION NO NAI 40 OF 1983
(In the matter of an intended appeal)
BETWEEN
1. CLEOPHAS MASINDE SIMIYU……..………………………...APPLICANTS
2. KATA BIKETI
AND
1. MAURICE BARASA WATAMBAMALA
2. FRANCIS NYUKURI..………….…..…………………………RESPONDENTS
3. FRED WAFULA WATAMBAMALA
4. ANGARA JUMA WATAMBAMALA
(Appeal for extension of time to file notice of appeal in an intended appeal from the judgment of the
high court of Kenya at Kakamega (Gicheru, J) dated 8th August, 1983) In
HIGH COURT CIVIL CASE NO 14 OF 1982)
RULING
I recognize the force of that which Mr Munikah says, namely that the first appellant, who was the one who apparently gave the instructions, went out of the country knowing that Judgment was imminent. True, the date was changed to the 8th August, but that does not alter the essential fact in that he had no business to leave his advocate without instructions. Moreover, as Musoke J A said, in NJAGI v MUNYIRI[1975] EA, 179 at p 180, (and as I have had occasion to remark recently, in MUITA NJUGUNA v GITHERE, CIVIL APPEAL NAI 33 OF 1983), a Notice of Appeal is a formal document, simple in terms, and is filed almost as a matter of course. Mr Raballa could have filed one, as a matter of prudence.
That having been said, it cannot be gainsaid that the delay in filing the application for extension is not great, the period expiring on 22nd August and the application being filed on 7th September, some 16 days later. In KAWUKA v KARIM 5 [1937] EACA, 37, for instance, the delay in filing the application was nearly 3 years. Normally, the court will look with little sympathy on an application to extend the time for filing the Notice of Appeal (as opposed to other more complicated steps), but in this case, mindful as I am of Mr Munikah’s plea regarding his clients being kept out of the land, I propose to exercise my discretion under Rule 4 by granting an extension.
Extension is granted until 2nd March to file the Notice of Appeal in this case. The respondents must have the costs of this application. Orders accordingly.
Dated at Nairobi, this 28th day of February, 1984.
A R W HANCOX …………………….
JUDGE OF APPEAL
www.kenyalawreports.or.ke
I certify that this is a true copy of the original. …………………….
DEPUTY REGISTRAR