[2002] KECA 323 (KLR)
The court held that although litigation should generally come to an end, the delay in this case was caused by an excusable mistake of the applicant's counsel. The applicant acted promptly in filing the current motion after his appeal was struck out. Therefore, the court exercised its discretion under rule 4 of the...
Source-derived case information.
- Citation
- [2002] KECA 323 (KLR)
- Parties
- Applicant: Ephantus Wanjohi Ruhara; Respondent: Eunice Wanjiku Ruhara; Respondent: Jotham Gichuki Ruhara; Respondent: Joseph Kago Ruhara; Respondent: Duncan Maina Ruhara; Respondent: John Muchoki Ruhara; Respondent: Esther Wakonyu Ruhara; Respondent: Samuel Mwangi Ruhara
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 141 of 2002
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal Out of Time
- Outcome
- Application allowed; extension of time granted subject to payment of costs.
- Legal Topics
- Extension of Time, Appeal Process, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ephantus Wanjohi Ruhara
Applicant
Eunice Wanjiku Ruhara
Respondent
Jotham Gichuki Ruhara
Respondent
Joseph Kago Ruhara
Respondent
Duncan Maina Ruhara
Respondent
John Muchoki Ruhara
Respondent
Esther Wakonyu Ruhara
Respondent
Samuel Mwangi Ruhara
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file a fresh notice and record of appeal after the previous appeal was struck out as incompetent.
- 2 Whether the delay in concluding the litigation was excusable due to counsel's mistake.
Ratio Decidendi
The court held that although litigation should generally come to an end, the delay in this case was caused by an excusable mistake of the applicant's counsel. The applicant acted promptly in filing the current motion after his appeal was struck out. Therefore, the court exercised its discretion under rule 4 of the Court of Appeal Rules to grant an extension of time for filing a fresh notice of appeal and the record of appeal. The applicant was ordered to pay the costs of the motion, failing which the motion would be deemed dismissed with costs.
Court Disposition
Application allowed; extension of time granted subject to payment of costs.
Orders
- Time for filing a fresh notice of appeal extended by seven (7) days from the date hereof.
- Time for lodging a record of appeal extended for a further thirty (30) days thereafter.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI
CORAM: BOSIRE, J.A (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 141 OF 2002 (NYR 14/2002
BETWEEN
EPHANTUS WANJOHI RUHARA………………………… APPLICANT
AND
EUNICE WANJIKU RUHARA ………….…….……) 1ST RESPONDENT
JOTHAM GICHUKI RUHARA……………..….….. ) 2ND RESPONDENT
JOSEPH KAGO RUHARA ……………………….…) 3RD RESPONDENT
DUNCAN MAINA RUHARA ……………………… ) 4TH RESPONDENT
JOHN MUCHOKI RUHARA …………….………….) 5TH RESPONDENT
ESTHER WAKONYU RUHARA ………..…………..) 6TH RESPONDENT
SAMUEL MWANGI RUHARA …………...…………) 7TH RESPONDENT
(Application for extension of time to file Notice and Record of Appeal out of time from a Ruling and Order of the High Court of Kenya at Nyeri (Abdullah, J) dated 9. 11. 1985. in H.C.C.C. NO. 174 OF 1985) *****************
R U L I N G
It is well settled now that a party whose appeal has been struck out as incompetent may restart the appellate process. That is what the applicant seeks to do in this application expressed to be brought under rule 4of the Court of Appeal Rules. The applicant seeks an order extending the time within which to file a fresh notice and record of appeal. Counsel for the respondents, Mr. Okeyo, argues that I should not exercise my discretion under the aforesaid rule because the litigation between the parties started way back in 1985, and the decision intended to be appealed against was given in 1989. In his view litigation should come to an end.
I agree with Mr. Okeyo that in an appropriate case litigation should come to an end. However, where as here the delay in concluding the litigation arose because of an excusable mistake of counsel for the applicant, I am inclined to exercise my discretion in favour of extending the time as prayed. That is the more so because the applicant acted with promptitude in filing this motion after his appeal was struck out.
In the result I extend the time for filing a fresh notice of appeal by seven (7) days from the date hereof and for a further thirty (30) days thereafter for the lodging of a record of appeal. The applicant shall bear the costs of this motion assessed at Kshs. 7,000/= to be paid within five days of today’s date failing which this motion shall be deemed to have been dismissed with costs.
Dated and delivered at Nyeri this 30th day of October, 2002.
S.E.O. BOSIRE
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JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR