[2007] KECA 243 (KLR)
The court exercised its discretion under rule 4(1) of the Court of Appeal Rules to grant the applicant an extension of time to lodge and serve a fresh Notice of Appeal and Record of Appeal. The decision was influenced by the fact that the respondents did not oppose the application and the extension sought was for a...
Source-derived case information.
- Citation
- [2007] KECA 243 (KLR)
- Parties
- Applicant: Francis Mburu Njoroge; Respondent: Peter Kabibi Kinyanjui; Respondent: Africa Media Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 71 of 2007
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- Application allowed. Extension of time granted.
- Legal Topics
- Extension of Time, Appeals Process, Notice of Appeal, Record of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mburu Njoroge
Applicant
Peter Kabibi Kinyanjui
Respondent
Africa Media Limited
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 lodge and serve a fresh Notice of Appeal and Record of Appeal after the original record was struck out.
- 2 Whether the discretion under rule 4(1) of the Court of Appeal Rules should be exercised in favour of the applicant.
Ratio Decidendi
The court exercised its discretion under rule 4(1) of the Court of Appeal Rules to grant the applicant an extension of time to lodge and serve a fresh Notice of Appeal and Record of Appeal. The decision was influenced by the fact that the respondents did not oppose the application and the extension sought was for a reasonable period of 21 days. The court found no prejudice to the respondents and considered the interests of justice in allowing the applicant to pursue the intended appeal. Accordingly, the court ordered that the Notice of Appeal be lodged and served within seven days from the date of the order, and the Record of Appeal within fourteen days thereafter.
Court Disposition
Application allowed. Extension of time granted.
Orders
- Time for lodging and serving the Notice of Appeal is extended to expire seven days from the date of the order.
- The Record of Appeal shall be lodged and served within fourteen days from the lodging of the Notice of Appeal.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
Civil Appli 71 of 2007
FRANCIS MBURU NJOROGE ……………..………..…….APPLICANT
AND
PETER KABIBI KINYANJUI ……….…..……..……1ST RESPONDENT
AFRICA MEDIA LIMITED …………………...….…2ND RESPONDENT
(An application for extension of time within which to lodge the notice of appeal and record of appeal against the judgment of the High Court of Kenya Nairobi (Mr. Justice J.L.A. Osiemo) dated 27th June, 2000in H.C.C.C. NO. 2643 OF 1986)
***************
O R D E R
This is an application for an extension of time within which the applicant can lodge and serve a fresh Notice of Appeal and Record of Appeal. The original Notice of Appeal against the judgment of Osiemo J delivered on 27th June 2000 was lodged in time but the record of appeal was not lodged in time.
The extension time sought, according to Mr. Tiego the learned counsel for the applicant is 21 days from the date when theoriginal Record of Appeal was struck out on 13th March, 2007 to the date when the current Notice of Motion applying for extension was filed on 3rd April 2007. He relied on the case Alfred Ramaris and others vs. Association of Members Episcopal Conference in Eastern AfricaCivil Application No. Nai. 375 of 2002(unreported).
Mr. Kamunda, the advocate for the respondents Peter Kabibi Kinyanjui and Africa Media Limited informed me that he did not oppose the application.
In applications under rule 4 (1), as a single Judge, have an unfettered discretion to extend the time for filing a fresh Notice of Appeal and Record of Appeal following upon the striking out of the Record of Appeal originally filed.
Given that the respondent does not oppose the application and that the extension sought is 21 days I exercise my discretion in favour of granting the extension of time sought.
I hereby order that the time within which the application Francis Mburu Njoroge may lodge and serve his Notice of Appeal is extended to expire seven days from today.
I hereby further order that the Record of Appeal shall be lodged and served within fourteen days from the lodging of the Notice of Appeal. Costs of this application shall be in the intended appeal.
Dated and delivered at Nairobi this 27th day of July 2007.
W. S. DEVERELL
………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR