[1994] KECA 58 (KLR)
The court exercised its discretion to grant the extension of time, finding that although there was an inordinate delay in filing the appeal, the delay was largely attributable to the applicant's counsel, and it is a settled principle that a litigant should not be penalized for the mistakes of counsel. Furthermore,...
Source-derived case information.
- Citation
- [1994] KECA 58 (KLR)
- Parties
- Applicant: Fredrick G.K. Waithaka; Respondent: Thuo Kamau; Respondent: David Njuguna Thuo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 71 of 1994
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Adverse Possession, Appeal Rights
- 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
Fredrick G.K. Waithaka
Applicant
Thuo Kamau
Respondent
David Njuguna Thuo
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file an appeal against the High Court judgment.
- 2 Whether the delay in filing the appeal, attributed to both counsel and applicant, should bar the applicant from pursuing the appeal.
Ratio Decidendi
The court exercised its discretion to grant the extension of time, finding that although there was an inordinate delay in filing the appeal, the delay was largely attributable to the applicant's counsel, and it is a settled principle that a litigant should not be penalized for the mistakes of counsel. Furthermore, the subject matter involved land that had been divested from the applicant under the doctrine of adverse possession, making it just and fair to allow the applicant to exhaust all legal avenues. The court therefore allowed the application and extended the time for filing the appeal by 14 days from the date of the ruling.
Court Disposition
application allowed
Orders
- Time for filing the appeal is extended by 14 days from the date of this ruling.
- The costs of this application will be the respondents' costs in the appeal in any event.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI CORAM: TUNOI, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI 71 OF 1994BETWEEN FREDRICK G.K. WAITHAKA ............................. APPLICANT AND THUO KAMAU DAVID NJUGUNA THUO .................................RESPONDENTS(Application for extension of time to file an appeal from a judgment of the High Court of Kenya at Nairobi (Justice Mbito) dated 6th June, 1991 in H.C.C.C. NO. 627 OF 1987(OS)) ********************RULING This is an application for extension of time to file an intended appeal against the judgment of the superior court (Mbito J) dated 6th June, 1991. Under rule 4 of the Court of Appeal Rules, this Court is empowered to enlarge time on any grounds, it seems just. Thus, there is conferred upon the court unlimited discretion to extend time subject only to the requirement of justice. I will now attempt to apply this principle so far as this case is concerned.
The subject matter of the suit is the superior court and in the intended appeal is land which has been divested of the applicant under the doctrine of adverse possession. It is only fair and just that he should be allowed to exhaust all the legal avenues open to him before a final decision is made.
It is common ground that there has been an inordinate delay of well nigh three years in instituting the appeal. The fact of the delay has been placed squarely at the door of the applicant's counsel. The applicant, too, is partly guilty of indolence.However, it is now settled that an appeal should not be negated by the mistakes of counsel. In all the circumstances, I allow this application and extend time for filing the appeal by 14 days from today. The costs of this application will be the respondents' costs in the appeal in any event.
Dated and delivered at Nairobi this 17th day of November, 1994.
P. K. TUNOI JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR