[1997] KECA 148 (KLR)
The court found that the applicant acted promptly after his initial appeal was struck out for procedural defects, including variance in judgment and decree dates and omission of exhibits. The delay in bringing the application for extension of time was not inordinate. The respondent's opposition was not based on any...
Source-derived case information.
- Citation
- [1997] KECA 148 (KLR)
- Parties
- Applicant: David Waiganjo Wamanda; Respondent: Safari Camp Services Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 170 of 1997
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals Process, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Waiganjo Wamanda
Applicant
Safari Camp Services Ltd
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file a notice of appeal and record of appeal after the previous appeal was struck out for procedural defects.
Ratio Decidendi
The court found that the applicant acted promptly after his initial appeal was struck out for procedural defects, including variance in judgment and decree dates and omission of exhibits. The delay in bringing the application for extension of time was not inordinate. The respondent's opposition was not based on any legal impediment to the application. In the circumstances, the court exercised its discretion in favour of the applicant, holding that this was a fit case for extension of time to file a fresh notice of appeal and record of appeal.
Court Disposition
application allowed
Orders
- Time to file a fresh notice of appeal is extended by 7 days from the date of this ruling.
- Time to lodge a record of appeal is extended by a further 30 days.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: BOSIRE AG. JA (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 170 OF 1997
BETWEEN
DAVID WAIGANJO WAMANDA....................................APPLICANT
AND
SAFARI CAMP SERVICES LTD.................................RESPONDENT
(Application for extension of time to file notice of appeal and record of appeal
out of time in an intended appeal from a judgement, decree,) of the High Court
of Kenyaat Nairobi (Mr Justice Shah) dated 20th December 1994
in
H.C.C.C. No.775 of 1984) *****************
RULING
The applicant's earlier appeal was struck out on 26th June 1997 because, firstly there was variance between the date of the judgment and of the decree appealed against and, secondly, because his record of appeal did not include the exhibits which had been produced before the trial court. In this application he seeks extension of time under rule 4 of the Rules of this court to file a competent appeal. After his appeal was struck out the applicant says he has taken the necessary steps to have the date of the superior court judgment, against which his intended appeal relates, amended. He filed this application within a month. The delay in doing so is not inordinate.
The respondent opposes the application but in my view the ground which it relies upon is tenuous because there is no legal impediment to an applicant whose appeal has been struck out for being incompetent seeking extension of time within which to file a competent appeal.
In the above circumstances I consider this to be a fit case for exercising my discretion in favour of extending time.
Accordingly I extend the time within which to file a fresh notice of appeal, by 7 days from the date hereof and for lodging a record of appeal by a further 30 days.
Dated at Nairobi this 29th day of October 1997.
S.E.O. BOSIRE
...................................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR