[1997] KECA 156 (KLR)
The court found that the applicant acted promptly in bringing the application for extension of time, only four days after the previous appeal was struck out for a purely technical reason—the failure to translate an exhibit from Kikuyu to English. The court exercised its discretion under Rule 4 of the Court of Appeal...
Source-derived case information.
- Citation
- [1997] KECA 156 (KLR)
- Parties
- Applicant: Francis Mwangi Mucheru; Respondent: Hannah Mburu Kiarie
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 139 of 1997
- 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, Procedural Non Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mwangi Mucheru
Applicant
Hannah Mburu Kiarie
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 leave to file a notice of appeal and record of appeal out of time after the previous appeal was struck out for procedural non-compliance.
- 2 Whether the delay in bringing the application was excusable given the circumstances.
Ratio Decidendi
The court found that the applicant acted promptly in bringing the application for extension of time, only four days after the previous appeal was struck out for a purely technical reason—the failure to translate an exhibit from Kikuyu to English. The court exercised its discretion under Rule 4 of the Court of Appeal Rules, noting that the fault was not substantive but technical, and that justice would be better served by allowing the applicant to pursue the intended appeal. The respondent's right to file a cross appeal was preserved. Costs were ordered to be in the intended appeal.
Court Disposition
Application allowed. Extension of time granted.
Orders
- The applicant is granted 7 days from the date of this ruling to file the notice of appeal.
- The applicant is granted thirty days thereafter to file the record of appeal.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (CORAM: AKIWUMI, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 139 OF 1997
BETWEEN
FRANCIS MWANGI MUCHERU ........................... APPLICANT AND HANNAH MBURU KIARIE .............................. RESPONDENT
(Application for extension of time in an intended Appeal from a Judgment of the High Court of Kenya at Nairobi (Justice Githinji) dated 9th March, 1993
in H.C.C.C. NO. 4927 OF 1991) **********
R U L I N G
The present application is by the applicant for leave to file a notice of appeal and record of appeal out of time, in respect of an appeal that was struck out on 6. 6.1997 on the ground that it was incompetent as the then record of appeal contained an exhibit which had not been translated from Kikuyu into English as mandatorily required by the Rules of this court. Four days thereafter, the applicant brought the present application. This has been done timeously and the fault that had led to the striking out of the previous appeal was a purely technical one. In the exercise of my wide powers under Rule 4 of the Rules of this Court under which the present application has been brought, I will grant the applicant 7 days from today within which to file the notice of appeal and thirty days thereafter within which to file the record of appeal. For the avoidance of doubt, it is hereby reiterated that the respondent will be at liberty to file her cross appeal in accordance with Rule 96 of the Rules of this courts. Of course, costs will be in the intended appeal.
Dated and delivered at Nairobi this 28th day of July, 1997.
A. M. AKIWUMI
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.