[1997] KECA 157 (KLR)
The application was dismissed because a single judge has no jurisdiction to validate a defective notice of appeal already forming part of the record in a pending appeal, nor to declare the record of appeal to be in proper form. The notice of appeal is a primary document under rule 85(1) of the Court of Appeal Rules...
Source-derived case information.
- Citation
- [1997] KECA 157 (KLR)
- Parties
- Applicant: Fredrick Wachira Ndegwa (Substituted Ndegwa Wachira); Respondent: Richard Wanjiku Ndanjeru; Respondent: Beauttah Kanyora Muthui
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 136 of 1997
- Procedural Posture
- Civil Application / Application for Extension of Time to Lodge Notice of Appeal
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Notice of Appeal, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Wachira Ndegwa (Substituted Ndegwa Wachira)
Applicant
Richard Wanjiku Ndanjeru
Respondent
Beauttah Kanyora Muthui
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to Lodge Notice of Appeal
Legal Issues
- 1 Whether the applicant can be granted an extension of time to file a second notice of appeal to validate a defective notice already on record.
- 2 Whether a single judge has the power to declare a record of appeal to be in proper form.
Ratio Decidendi
The application was dismissed because a single judge has no jurisdiction to validate a defective notice of appeal already forming part of the record in a pending appeal, nor to declare the record of appeal to be in proper form. The notice of appeal is a primary document under rule 85(1) of the Court of Appeal Rules and cannot be introduced into the record by way of a supplementary record. The power to determine the propriety of the record of appeal lies exclusively with the full Court, not a single judge. Accordingly, the orders sought by the applicant could not be granted.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- No order as to costs as the respondents have not appeared though served.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: KWACH, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 136 OF 1997 (58/97UR)
BETWEEN
FREDRICK WACHIRA NDEGWA
(SUBSTITUTED NDEGWA WACHIRA) ..................... APPLICANT
AND
RICHARD WANJIKU NDANJERU
BEAUTTAH KANYORA MUTHUI .......................... RESPONDENTS
(Application for extension of time to lodge notice of appeal in an intended appeal from judgment and order of the High Court of Kenya at Nyeri (Justice Osiemo) dated 18th November, 1996 in H.C.C.C. NO. 300 OF
R U L I N G
In this application brought under rule 4 of the Rules of this Court, the applicant, Fredrick Wachira Ndegwa (the applicant), is seeking most peculiar orders. He wants time extended to enable him to file a second notice of appeal in an appeal which he lodged in this Court on 16th January, 1997(Civil Appeal No. 15 of 1997). He is also asking for a second order to the effect that the record in that appeal is properly before the Court.
In his supporting affidavit and his submissions before me the applicant said that the notice of appeal he filed in the superior court on 19th November, 1996, was not dated as required by rule 74(6) of the Rules of this Court which requires such notice to be dated, among other things.
There are two reasons why I cannot grant the orders sought by the applicant. As a single Judge of this Court I have power to extend time to file a notice of appeal. If I permit the applicant to file a second notice he cannot use it, as he intends, to validate the defective notice in the record of appeal in Civil Appeal No. 15 of 1997. Such a notice of appeal cannot form part of the record in that appeal because, being a primary document within the meaning of rule 85(1) of the Rules of this Court, it cannot be added to the record of appeal by way of a supplementary record with or without the leave of the Court.
The second reason is that I have no power to declare a record of appeal to be in proper form. That is the preserve of the full Court. It would be foolhardy on my part to commit what in essence would constitute an act of judicial trespass.
These are my reasons for refusing to grant the orders sought by the applicant.
The application is dismissed but with no order as to costs as the respondents have not appeared though served.
Dated and delivered at Nairobi this 18th day of June, 1997.
R.O. KWACH .................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.