[2005] KECA 121 (KLR)
The court found that the delay in filing the notice of appeal was about 14 days, which was not substantial. The applicant had instructed his advocate to file the notice of appeal within a reasonable time after the judgment, but the advocate failed to act promptly. The respondent did not oppose the application. In...
Source-derived case information.
- Citation
- [2005] KECA 121 (KLR)
- Parties
- Applicant: Francis Njuguna Ndungu; Respondent: E. Olweny t/a Olweny & Association
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 320 of 2004
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- Application allowed.
- Judges
- AM Githinji
- Legal Topics
- Extension of Time, Notice of Appeal, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Njuguna Ndungu
Applicant
E. Olweny t/a Olweny & Association
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file and serve a notice of appeal out of time.
Ratio Decidendi
The court found that the delay in filing the notice of appeal was about 14 days, which was not substantial. The applicant had instructed his advocate to file the notice of appeal within a reasonable time after the judgment, but the advocate failed to act promptly. The respondent did not oppose the application. In the exercise of its discretion under Rule 4 of the Court of Appeal Rules, the court deemed the notice of appeal filed on 24th August, 2004 as duly filed within time and allowed the application for extension of time.
Court Disposition
Application allowed.
Orders
- The Notice of Appeal filed on 24th August, 2004 is deemed as duly filed within time.
- The notice of appeal to be served within 7 days of this order.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
(CORAM: GITHINJI, J.A. (IN CHAMBERS) Civil Application NAI 320 of 2004
BETWEEN
FRANCIS NJUGUNA NDUNGU ………………………………….... APPLICANT
AND
E. OLWENY T/A OLWENY & ASSOCIATION ……………… RESPONDENT
(Application for extension of time within which to lodge an appeal from a decision of the High Court of Kenya at Nakuru (Justice Kimaru) dated 23rd July, 2004 in
H.C.C.C. NO. 57 OF 2001)
******************
R U L I N G
This is an application under Rule 4 of the Rules of this Court for extension of time within which to file and serve a notice of appeal from the decision of the superior court dated 23rd July, 2004 in Civil Appeal No. 57 of 2001.
The applicant intends to appeal against the decision of the superior court delivered on 23rd July, 2004. The application is supported by the affidavit of the applicant. The supporting affidavit shows that the applicant instructed an advocate to file a notice of appeal on 28th July, 2004 – 5 days after the delivery of the judgment but the advocate did not file a notice of appeal until 24th August, 2004 – about a month after the date of the judgment. The notice of appeal should have been filed within 14 days. The notice of appeal was filed about 14 days late. That delay is not substantial. The respondent who appears in person does not oppose the application.
In the circumstances, I allow the application. The Notice of Appeal filed on 24th August, 2004 is deemed as duly filed within time. The notice of appeal to be served within 7 days of this order.
Costs of the application assessed at Shs.2,000/= to the respondent. The costs to be paid within 14 days.
Dated and delivered at Nakuru this 29th day of September, 2005.
E.M. GITHINJI
………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR