[2005] KECA 230 (KLR)
The court found that the delay of just over two weeks after the proceedings were supplied was not inordinate and was satisfactorily explained by the applicant's counsel being away on personal matters. The court emphasized that the subject matter involved close family members and succession issues, and that the...
Source-derived case information.
- Citation
- [2005] KECA 230 (KLR)
- Parties
- Applicant: Gachihi Wang'ombe; Respondent: Erastus Wang'ombe
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 361 of 2004
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application granted
- Judges
- J Wakiaga
- Legal Topics
- Extension of Time, Succession Appeals, Judicial Discretion, Delay in Filing, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gachihi Wang'ombe
Applicant
Erastus Wang'ombe
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the notice and record of appeal out of time.
- 2 Whether the court should exercise its discretion to extend time for filing the appeal in a succession matter involving family members.
Ratio Decidendi
The court found that the delay of just over two weeks after the proceedings were supplied was not inordinate and was satisfactorily explained by the applicant's counsel being away on personal matters. The court emphasized that the subject matter involved close family members and succession issues, and that the applicant was exercising a legitimate right of appeal. There was no culpable conduct on the applicant's part, and the respondents' objections related to the merits of the appeal rather than the delay. Accordingly, the court exercised its discretion to grant the extension of time, deeming the notice of appeal as duly filed and served, and ordered the record of appeal to be filed and...
Court Disposition
application granted
Orders
- The notice of appeal filed on 30.7.2004 is deemed to have been filed and served timeously.
- The record of appeal shall be filed and served within 30 days of this ruling.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI
CORAM: WAKI, J.A. (IN CHAMBERS)
Civil Application Nai 361 of 2004
BETWEEN
GACHIHI WANG’OMBE……………………..………….……………..APPLICANT
AND
ERASTUS WANG’OMBE……………………………………………..RESPONDENT
(Application for extension of time to appeal out of time from an order of the High Court of Kenya at Nyeri (Khamoni, J) dated 26. 7.2004
in
H.C.SUCC.C. NO. 105 OF 1999) ******************
R U L I N G
The notice of Motion dated 22. 12. 04 seeking four substantive orders under Rule 4 of this court’s Rules, namely.
“1. THAT the applicant be granted leave to file Notice of appeal out of time.
2. THAT the applicant herein be granted leave to file appeal out of time.
3. THAT the annexed petition of appeal be deemed to be duly filed.
4. THAT there be a stay of any further proceedings includingexecution in H.C. Succession Cause NO. 105 of 1999 until the final hearing and determination of the Appeal.”
Obviously, the 4th prayer cannot be granted under Rule 4 and it was appropriate that the applicant did not argue for its grant. So is the 3rd prayer which was abandoned by counsel. The application therefore boils down to extension of time to file a notice of appeal and the record of appeal out of time. There was indeed a notice of appeal which was timeously filed on 30. 7.04 but it was deemed to have been withdrawn by dint of Rule 82(a) of this Court’s Rules. Thereafter the applicant applied for copies of proceedings but these were not supplied until 8. 12. 04. It is not the applicant’s fault that the copies were delayed. The period of delay that calls for explanation is therefore between 8. 12. 04 to 24. 12. 04 when this application was filed which is just over two weeks. The explanation offered in the supporting affidavit is that counsel was away from his office on personal matters and he acted soon after he was able to. The subject matter of the intended appeal is Succession involving the parties who are related. Issues of illegality will also be raised and contested.
The two respondents did not think the applicant ought to be allowed to file the intended appeal. But the reasons given in their replying affidavit and in oral submission relate to the merits of the intended appeal which they feel they cannot succeed, in view of what the superior court decided.
My discretion under rule 4 is unfettered but it must be exercised on sound basis or as is normally put judicially. I do not consider the period of two weeks delay as inordinate nor do I have any reason to doubt the reasons given for the delay in seeking extension of time. More importantly, the subject matter of the dispute involves close family members over Succession issues. The respondents may well feel satisfied that the superior court was right in deciding in their favour, but the applicant is exercising an undoubted right of appeal too, and barring any culpable conduct on his part, he ought to be allowed to exhaust the legal channels available to him.
I grant the application and order that the notice of appeal filed on 30. 7.704 be deemed to have been filed and served timeously. The record of appeal shall be filed and served within 30 days of this ruling. The costs of the application shall be borne by the applicant in any event and are assessed at Shs.5,000/-
DATED and DELIVERED at NYERI this 20th day of May, 2005.
P.N. WAKI
…………………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR