[2011] KECA 126 (KLR)
The court exercised its discretion under rule 4 of the Court of Appeal Rules to grant the applicant an extension of time to lodge and serve the notice of appeal, despite the delay. The court found that while imprisonment is not in itself a sufficient ground for delay, the delay in this case was not inordinate. The...
Source-derived case information.
- Citation
- [2011] KECA 126 (KLR)
- Parties
- Applicant: David Kariuki Waiganjo; Respondent: Rosebella Jerono Mudavadi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 80 of 2011
- Procedural Posture
- Civil Application / Application for Extension of Time to File Appeal
- Outcome
- Application allowed. Extension of time granted.
- 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
David Kariuki Waiganjo
Applicant
Rosebella Jerono Mudavadi
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to lodge and serve a notice of appeal out of time.
- 2 Whether the applicant's imprisonment constituted sufficient cause for the delay in filing the notice of appeal.
Ratio Decidendi
The court exercised its discretion under rule 4 of the Court of Appeal Rules to grant the applicant an extension of time to lodge and serve the notice of appeal, despite the delay. The court found that while imprisonment is not in itself a sufficient ground for delay, the delay in this case was not inordinate. The respondent did not oppose the application, and the interests of justice favored allowing the applicant to proceed with the appeal. The notice of appeal already lodged and served was deemed as served in time, and the applicant was granted 30 days to file and serve the record of appeal.
Court Disposition
Application allowed. Extension of time granted.
Orders
- Time for lodging and serving the notice of appeal is extended; the notice already lodged and served is deemed as served in time.
- The applicant is granted 30 days from the date of the ruling to file and serve the record of appeal.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE COURT OF APPEAL
AT NAKURU
(CORAM: BOSIRE, J.A (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 80 OF 2011
BETWEEN
DAVID KARIUKI WAIGANJO ………………………………………………..APPLICANT
AND
ROSEBELLA JERONO MUDAVADI …………………………………….RESPONDENT
(An application for extension of time within which to file appeal arising from the ruling of (Maraga, J.) dated 10th December, 2010
in
NAKURU H.C.C.C. NO. 11 OF 2006)
*****************************
R U L I N G
This is a motion under rule 4 of the Court of Appeal Rules for an extension of time within which to lodge and serve a notice of appeal, and thereafter a record of appeal. The applicant is David Kariuki Waiganjo, who, by the order of the High Court (D. Maraga J) made on 2nd December, 2010 in Nakuru High Court Civil Case No. 11 of 2006, was committed to prison to serve a jail term of three months for an alleged act of contempt against that court’s order. He has since served the jail term, but the order committing him to prison also directed that he compensates the respondent. It is the order for compensation which he wants to challenge on appeal. He lodged in the High Court a notice of appeal, but out of time. Hence this motion.
Mr. Ateya for the respondent does not oppose the motion. The reason given for the delay in lodging a notice of appeal is that the applicant was in jail and could not lodge the notice. Being in prison is not by itself a ground for failing to take an essential step in the appellate process in either a criminal or civil matter. However, as the court has unfettered discretion in an application under rule 4 and considering that the delay in lodging the notice of appeal though long is not inordinate, I am inclined to exercise my discretion in favour of the applicant, and accordingly extend the time within which to lodge and serve the notice and the notice already lodged and served is deemed as served in time. The applicant is granted 30 days from the date hereof within which to file and serve a record of appeal. The costs of the motion dated 24th March, 2011 are awarded to the respondent is any event.
Dated and delivered at Nakuru this 26th day of September, 2011.
S.E.O. BOSIRE
………………………
JUDGE OF APPEAL
I certify that this is a truecopy of the original.
DEPUTY REGISTRAR