[1997] KECA 357 (KLR)
The court found that the delay between the striking out of the original appeal and the filing of the present application was not long or inordinate. The omission of exhibits from the original record of appeal was attributed to a mistake or oversight rather than deliberate conduct, as there was no evidence to the...
Source-derived case information.
- Citation
- [1997] KECA 357 (KLR)
- Parties
- Applicant: Geoffrey Chege Nuthu; Respondent: Averalli & Brothers
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 175 of 1996
- Procedural Posture
- Civil Application / Application for Extension of Time to File Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeal Out of Time, Procedural Default
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Chege Nuthu
Applicant
Averalli & Brothers
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file a notice of appeal and record of appeal after the original appeal was struck out as incompetent.
- 2 Whether the delay in filing the application was inordinate or excusable.
- 3 Whether the omission of exhibits in the original record of appeal was deliberate or a genuine mistake.
Ratio Decidendi
The court found that the delay between the striking out of the original appeal and the filing of the present application was not long or inordinate. The omission of exhibits from the original record of appeal was attributed to a mistake or oversight rather than deliberate conduct, as there was no evidence to the contrary. The court held that the merits of the intended appeal were not for consideration at this stage. In light of all the circumstances, the court exercised its discretion under rule 4 of the Court of Appeal Rules to grant the extension of time sought by the applicant.
Court Disposition
application allowed
Orders
- Notice of appeal to be filed within 7 days.
- Record of appeal to be filed within 30 days thereafter.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
(CORAM: LAKHA, J.A. (IN CHAMBERS)
(CIVIL APPLICATION NO. NAI.175 OF 1996)
BETWEEN
GEOFFREY CHEGE NUTHU..............................APPLICANT
AND
AVERALLI & BROTHERS.............................RESPONDENTS
(Application for extension of time to file an appeal out of time in an intended appeal from a judgment of the High Court of Kenya at Nakuru (D.M. Rimita) dated 13th September, 1994 in H.C.C.C. NO. 101 OF 1990) *******************
R U L I N G
This is an application under rule 4 of the Rules of this Court for an extension of time to file a notice of appeal and a record of appeal consequent upon the original appeal having been struck out as incompetent. The appeal was struck out on February 28, 1996 and the present application was made on March 29, 1996. I do not consider that this delay was long or inordinate. It seems to me that there was a mistake or oversight in failing to include the exhibits in the original record of appeal. Mr Mugaka for the respondent opposed the application. He sought to argue that on the merits the claim could not succeed and that the plaint is bad in law. The matters go to the merits of the applicant as I am not at this stage, required to consider those. I am also not persuaded that the omission was deliberate there being no material before me to justify such a conclusion.
Having regard to all the circumstances of the case I am satisfied that this is a fit and proper case for the exercise of my unfiltered discretion under rule 4 of the Rules of this Court.
Accordingly the application is allowed. Notice of appeal shall be filed within 7 days and the record of appeal shall be filed within 30 days thereafter. The applicant shall pay to the respondent the costs of this application.
Dated and delivered at Nakuru this 21st day of February, 1997.
A.A. LAKHA
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR