[1998] KECA 115 (KLR)
The court held that the applicant had acted promptly in seeking an extension of time after the previous appeal was struck out for procedural reasons. The technical objections raised by the respondents, such as the lack of pagination and the naming error, were not sufficient to defeat the application as they did not...
Source-derived case information.
- Citation
- [1998] KECA 115 (KLR)
- Parties
- Applicant: Gladys Wanjiru; Respondent: Teresa Chepshat; Respondent: Pius Kibweet Sevre; Respondent: Bernard Kathanga; Respondent: Kerugoya County Council; Respondent: The Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 154 of 1998
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal and Record of Appeal
- Outcome
- application allowed
- Judges
- AB Shah
- Legal Topics
- Extension of Time, Appeals Process, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Wanjiru
Applicant
Teresa Chepshat
Respondent
Pius Kibweet Sevre
Respondent
Bernard Kathanga
Respondent
Kerugoya County Council
Respondent
The Attorney General
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal and Record of 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 previous appeal was struck out for procedural defects.
- 2 Whether technical objections regarding pagination and naming errors are sufficient to deny the application.
- 3 Whether the doctrine of res judicata applies to bar the intended appeal.
Ratio Decidendi
The court held that the applicant had acted promptly in seeking an extension of time after the previous appeal was struck out for procedural reasons. The technical objections raised by the respondents, such as the lack of pagination and the naming error, were not sufficient to defeat the application as they did not cause prejudice or impede understanding. The court further found that the doctrine of res judicata did not apply because the previous application was dismissed on a preliminary objection and not on the merits. Since the intended appeal was not frivolous and there was an arguable issue, the court exercised its discretion to grant the extension of time, allowing the applicant to...
Court Disposition
application allowed
Orders
- The applicant shall lodge the notice of appeal within 10 days.
- The applicant shall lodge the record of appeal within 30 days thereafter.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL AT NYERI CIVIL APPLICATION NO. NAI. 154 OF 1998 (NYR 12/98) CORAM: SHAH J.A (IN CHAMBERS
GLADYS WANJIRU........................................APPLICANT
AND
TERESA CHEPSHAT
PIUS KIBWEET SEVREY
BERNARD KATHANGA
KERUGOYA COUNTY COUNCIL
THE ATTORNEY GENERAL...............................RESPONDENTS
Application for extension of time to file a Notice of Appeal from an order of the High Court of Kenya at Nyeri (Mr. Justice Ang'awa) dated 28th November, 1994
in
H.C.C.C. NO. 182 OF 1992
*******************
RULING
I have before me, an application, brought under rule 4 of the Rules of this court, for extension of time to lodge a Notice of Appeal and the Record of Appeal thereafter. The application comes as a result of the applicants appeal, Civil Appeal No. 297 of 1996, being struck out on 13th May, 1998 as the record of appeal did not contain relevant amended draft plaint, a primary document.
This application was filed only a day after the said appeal was struck out. The applicant has not been, therefore, inactMirv.e . Machira for the 1st, 2nd and 3rd respondents, Mr. Muchira for the fourth respondent and Mr. Kabitu for the 5th respondent all opposed the application on the grounds that ruling of the superior court sought to be appealed against is not before me. That lack has not worried me as it is clear that the struck out appeal was against the refusal by the superior court (Ang'awa J) to allow amendment to the plaint.
The second objection was under rule 13(5) of the rules of this court, that it to say, the pages in the application were not marked at 10th lines. That technical objection is not such as to merit striking out an application. Mr. Machira confirmed that he had no difficulty in following the application dispite there being no 10th line numbering.
The third objection was to the effect that the proposed amended plaint now sought to be introduced was the same as the one that was not, during an earlier ruling by Ang'awa J, allowed. As I understood it Mr. Mahan at one stage made a double - barrelled application, seeking amendment of plaint and an injunction at the same time. That application was dismissed and hence the application, which was the subject - matter of the struck out appeal in this court was alleged to be res judicata. Mr. Mahan said he withdrew the said doublebarrelled application. I had to have recourse to the record of the superior court to inquire that the application was dismissed as a result of a successful preliminery objection taken by two respondents. If an application is dismissed as being defective there is no adjudication on merits and hence the second application cannot be barred by a plea of res judicata
I pointed out to Mr. Machira that the merits of the intended appeal are not in the province of a single judge of this court and if there is an intended appeal which is at least arguable it is incumbent upon the single judge to allow extension of time, if all other factors are in favour of the appliMcra.n t.M uchira took issue with the name (as used by the applicant) of the fourth respondent. It was pointed out that the name had been corrected to read "Kerugoya Kutus Municipal Council".
I am not prepared to say that the intended appeal is a frivolous one. I allow this application in my discretion and order that the notice of appeal be lodged within the next 10 days and the record of appeal within 30 days thereafter. The costs of this application will be costs in the intended appeal.
Dated and delivered at Nairobi this 17th day of November, 1998.
A. B. SHAH
..................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.