[2003] KECA 129 (KLR)
The court found that the applicant had demonstrated a genuine intention to appeal, as shown by the timely filing of the notice of appeal. The delay was attributed to the abandonment by her previous counsel, not to any fault of her own. The court held that it would be unjust to punish the applicant for her advocate's...
Source-derived case information.
- Citation
- [2003] KECA 129 (KLR)
- Parties
- Applicant: Florence Manwari; Respondent: Margaret A. Abuoga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 317 of 2001
- 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, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Florence Manwari
Applicant
Margaret A. Abuoga
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the record of appeal.
- 2 Whether the court should exercise its discretion to extend time under rule 4 of the Court of Appeal Rules.
Ratio Decidendi
The court found that the applicant had demonstrated a genuine intention to appeal, as shown by the timely filing of the notice of appeal. The delay was attributed to the abandonment by her previous counsel, not to any fault of her own. The court held that it would be unjust to punish the applicant for her advocate's mistakes, and therefore exercised its discretion to grant the extension of time sought. The application was allowed, subject to the applicant paying costs to the respondent.
Court Disposition
application allowed
Orders
- The applicant is granted an extension of 30 days from the date of the ruling to file the record of appeal.
- The applicant shall pay the respondent KES 5,000 as costs of this application within 30 days, in default execution to issue.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
CORAM: O’KUBASU, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 317 OF 2001(KSM.38/01)
BETWEEN
FLORENCE MANWARI …….…….……………………………….. APPLICANT
AND
MARGARET A. ABUOGA ….……...….……………………….. RESPONDENT
(An application for extension of time to file and serve notice of appeal and record of appeal out of time from the judgment and decree of the High Court of Kenya at Kisumu (Mr. P.K.K. Arap Birech, commissioner of Assize) dated 27 th July, 2000 in H.C.C.C. NO. 348 OF 1997) **********
R U L I N G
This is an application brought under rule 4 of this Court’s Rules seeking an extension of time in which to file a record of appeal. The notice of appeal was filed in time by the applicant’s previous counsel hence there was desire and intention on the part of the applicant to challenge the decision of the superior court. Under rule 4 of this Court’s Rules the Court has unfettered discretion but this discretion must be exercised on good reasons. It is upon the applicant to explain to the Court’s satisfaction the reason for the delay. In the instant application it has been said that the applicant’s previous counsel abandoned her. There is a delay of ten months. Mr. K’Owino for the respondent thinks that the explanation given for the delay is not good enough. Mr. Kasamani for the applicant reminds me that the judgment obtained in favour of the respondent is now in excess of Shs. 1,000,000/-
I have considered all that has been urged before me and in view of the fact that the applicant had demonstrated her desire to appeal and that it was her previous counsel who abandoned her then she should not be punished for mistakes of her previous counsel. Consequently, this application is allowed and the applicant is granted an extension so that she should file her record of appeal within 30 days from the date of this ruling. As regards costs, I direct that the applicant is to pay to the respondent Shs. 5,000/- as costs of this application which amount is to be paid within 30 days in default execution to issue.
Dated and delivered at Kisumu this 26th day of March, 2003.
E. O. O’KUBASU
………………………………
JUDGE OF APPEAL I certify that this is a true copy of the original.
DEPUTY REGISTRAR