[2000] KECA 286 (KLR)
The court found that the main delay in filing the application for extension of time could not be entirely attributed to the inactivity of the applicant's counsel. The confusion at the High Court registry, which resulted in the corrected order being given to the wrong advocate, was a significant contributing factor....
Source-derived case information.
- Citation
- [2000] KECA 286 (KLR)
- Parties
- Applicant: Geoffrey Orao Obura; Respondent: Martha Karambu Koome
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 64 of ??
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals Process, Procedural Default
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Orao Obura
Applicant
Martha Karambu Koome
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided a sufficient and reasonable explanation for the delay in filing the notice and record of appeal.
- 2 Whether the delay in filing the application for extension of time is inordinate or excusable under the circumstances.
Ratio Decidendi
The court found that the main delay in filing the application for extension of time could not be entirely attributed to the inactivity of the applicant's counsel. The confusion at the High Court registry, which resulted in the corrected order being given to the wrong advocate, was a significant contributing factor. The court held that a delay of two to three weeks in the circumstances was not inordinate. The applicant provided a reasonable explanation for the delay, and the interests of justice warranted the exercise of the court's discretion to extend the time for filing the notice and record of appeal. Accordingly, the application was allowed, and specific timelines for filing were set.
Court Disposition
application allowed
Orders
- Time for lodging the Notice of appeal is extended by 7 days from the date of the ruling.
- The record of appeal to be lodged within 15 days from the date of filing the Notice of appeal.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OWUOR, J.A (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 64 OF 2000
BETWEEN
GEOFFREY ORAO OBURA .......................................APPLICANT AND MARTHA KARAMBU KOOME ............................... RESPONDENT
(Being an application for extension of time to file a Notice of appeal and record of appeal in an intended appeal from the judgment of the High Court of Kenya at Nairobi (Mr. Justice Keiwua) dated 30thSeptember, 1998 in H.C.C.C No. 473 of 1998 (OS) ********************** R U L I N G
This is an application under rule 4 of the Court of Appeal rules (the Rules) brought by Geoffrey Orao Obura (the applicant) seeking the following orders:- "1. That the time for filing the Notice of appeal be extended.
2. That the time for lodging the record of appeal be extended.
3. Such further orders to meet the ends of justice as may be deemed necessary be made. 4. That the costs of the application abide the result of the appeal".
The grounds upon which the above orders are sought are that the record of appeal earlier filed had an error due to inadvertence by the High Court Registry. Further that the applicant is convinced that he has a strong appeal to canvass before this Court. I am not concerned in this application with the second ground.
On 17th day of January, 2000 this Court struck out the applicant's Civil Appeal No. 275 of 1998 for being incompetent. It had breached the provisions of order XX rule 7(1) of the Civil Procedure Rules. In that the copy of the extracted order showed a different date, 1st October, 1999 while the order appealed from was given on 30th September, 1999. According to counsel for the applicant, on the same day he requested the registry at Milimani Commercial Courts to correIctt twhaes orcdoerrr.ected on 7th February, 2000 and therefore ready for collection. This application for extension of time was not filed till the 2nd of March, 2000. Mr. Khamati states that he could not file the application immediately after the striking out of the appeal because he was waiting for the corrected order. Counsel for the respondent has opposed the application on the ground that the applicant must be found guilty of an inordinate and unreasonable delay of about two months from the time the appeal was struck out and the time this Marp.p liKchaatmiaotni wdaose sf inloetd .deny that there was a delay. The reason he gives for the delay is that the corrected order was wrongly given to the firm of Martha Koome & Co. Advocate on or about 7th February, 2000 and was later passed on and received in his chambers on 15th February, 2000.
Mrs. Koome's story and as supported by her clerk who was given the order at the Registry and handed it over to Mr. Khamati's clerk is that the same was handed over on 9th February, 2000 and not 15th February, 2000 as claimed by Mr. Khamati. The variation in the story as to when the corrected order left Mrs Koome's chambers to Mr. Khamati's chambers is itself indicative of the confusion that had been caused at the High Court registry. If care had been taken, Khamati & Company advocate's document should not have been handed over to Martha Koome & Co. Advocates. In exercising my discretion as to whether or not I should extend time for the applicant, I am of the view that the main delay in the filing of the application cannot be entirely attributed to the inactivity of the applicant's counsel. Nor is a delay of three weeks or two weeks in the circumstances of this matter inordinate. I am of the view that the applicant has provided me with a perfectly reasonable explanation to warrant my extending the time as he requeIs tsa.ccordingly allow the application and extend the time for lodging the Notice of appeal by 7 days from today's date and thereafter the record of appeal to be lodged within 15 days from the date of filing the Notice of appeal. The respondent will have the costs of this application.
Dated and delivered at Nairobi this 7th day of June, 2000.
E. OWUOR .............. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR