[2000] KECA 174 (KLR)
The court found that although the litigation had been protracted, there was no evidence that the applicants were to blame for the delay between the judgment and the striking out of the previous appeal. The delay in bringing the present application was not inordinate. Therefore, it would be unjust to deny the...
Source-derived case information.
- Citation
- [2000] KECA 174 (KLR)
- Parties
- Applicant: Daniel Momanyi; Applicant: Fredrick O. Oyoo; Respondent: Samson Onyango Alai (acting as personal representative of the Estate of Julia Auma Anyango, deceased); Respondent: James Diruga Aremo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 267 of 1999
- Procedural Posture
- Civil Application / Application for Extension of Time to Lodge Notice and Record of Appeal
- Outcome
- Application allowed in part.
- Legal Topics
- Extension of Time, Appeals Process, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Momanyi
Applicant
Fredrick O. Oyoo
Applicant
Samson Onyango Alai (acting as personal representative of the Estate of Julia Auma Anyango, deceased)
Respondent
James Diruga Aremo
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to Lodge Notice and Record of Appeal
Legal Issues
- 1 Whether the applicants should be granted an extension of time to file and serve the notice of appeal and record of appeal.
- 2 Whether the delay in lodging the present motion was inordinate or attributable to the applicants.
- 3 Whether the notice of appeal should be served on the third respondent.
Ratio Decidendi
The court found that although the litigation had been protracted, there was no evidence that the applicants were to blame for the delay between the judgment and the striking out of the previous appeal. The delay in bringing the present application was not inordinate. Therefore, it would be unjust to deny the applicants an extension of time. The court also held that the third respondent, being a party directly affected by the appeal, must be served with the notice of appeal.
Court Disposition
Application allowed in part.
Orders
- Applicants to file and serve notice of appeal within 14 days of the date of this ruling.
- Record of appeal to be filed and served within 21 days from the date the notice of appeal is lodged.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: OMOLO, J.A (IN CHAMBERS)
CIVIL APPLICATION NO. NAI 267 OF 1999(KSM. 17/99)
BETWEEN
DANIEL MOMANYI ........................................................................... IST APPLICANT
FREDRICK O. OYOO ....................................................................... 2ND APPLICANT
AND
SAMSON ONYANGO ALAI (acting as personal representative of the Estate of JULIA AUMA ANYANGO (deceased) ...................................................... IST RESPONDENT
JAMES DIRUGA AREMO .............................................................. 2ND RESPONDENT
(Application for extension of time to lodge notice of appeal and record of appeal in an intended appeal from judgment and decree of the High Court of Kenya at Kisumu dated 28th May 1997 in Kisumu H.C.C.C. 218 of 1991) **********************
RULING
It may well be that the case has been going on for between nine and ten years as Mr Kasamani for the respondents states. I also agree that litigation ought to have an end. But in the present application before me, the truth is that the applicants' previous appeal was in fact struck out on the 23rd June, 1999. True the appeal was from a judgment dated 28th May, 1997, but there is no evidence before me that the time taken between the reading of the judgment and the striking out of the appeal was blamable upon the applicant. It is conceded that the delay between the striking out and the lodging of the present motion was not in any way inordinate. Having taken everything into account, I think it would be wrong for me to deny the applicants the extension they seek.
Accordingly I allow the motion to this extent:
(i)the applicants shall file and serve their notice of appeal within 14 (fourteen) days of the date
(ii)the rehceorredo fo.f appeal must be filed and served within twenty one days from the date the notice of appeal is lodged in court.
(iii)I however refuse to order that the notice of appeal be not served on the third respondent James Dirunga Aremo. The full court thought he was a party directly affected by the appeal and that being so, he must be served.
(iv)the costs of this motion shall be in the intended appeal. These shall be my orders.
Dated and delivered at Kisumu this 21st day of March, 2000.
R.S.C. OMOLO
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR