[1997] KECA 340 (KLR)
The court exercised its discretion to grant the extension of time because the applicants acted promptly after their previous appeal was struck out for procedural incompetence (undated ruling). The absence of delay and the applicants' undertaking to obtain a dated ruling before filing the intended appeal were...
Source-derived case information.
- Citation
- [1997] KECA 340 (KLR)
- Parties
- Applicant: The Estate of Joseph Munyinyi; Applicant: The Estate of Wachira Kahoro; Applicant: Hannah Mugure; Respondent: John Ndungu Thairu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 208 of 1996
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals Process, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Estate of Joseph Munyinyi
Applicant
The Estate of Wachira Kahoro
Applicant
Hannah Mugure
Applicant
John Ndungu Thairu
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal Out of Time
Legal Issues
- 1 Whether the applicants should be granted an extension of time to file a notice and record of appeal out of time.
- 2 Whether the absence of a dated ruling from the superior court precludes the exercise of discretion to grant the extension.
Ratio Decidendi
The court exercised its discretion to grant the extension of time because the applicants acted promptly after their previous appeal was struck out for procedural incompetence (undated ruling). The absence of delay and the applicants' undertaking to obtain a dated ruling before filing the intended appeal were sufficient to justify granting the application. The court held that the possibility of future procedural defects does not preclude the exercise of discretion at this stage, and the applicants should be allowed to proceed, subject to compliance with the rules regarding dated rulings.
Court Disposition
application allowed
Orders
- The application for extension of time is allowed as prayed in paragraph one of the notice of motion.
- The notice of appeal shall be filed within seven days of the date hereof.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: OMOLO, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI 208 OF 1996
BETWEEN
THE ESTATE OF JOSEPH MUNYINYI
THE ESTATE OF WACHIRA KAHORO
HANNAH MUGURE ......................................... APPLICANTS
AND
JOHN NDUNGU THAIRU .................................... RESPONDENT
(Application for extension of time to file notice and record of appeal out of time in an intended appeal from a ruling and order of the High Court of Kenya (Githinji J) dated 8th July, 1991 in H.C.C.C. NO. 373 OF 1983 (O.S.)) *********************
R U L I N G
The applicant's previous appeal was struck out on the 14th June, 1996. I am told by both counsel that it was struck out as being incompetent because the ruling of the superior court against which the appeal was brought was not dated. The applicant does not seem to have overcome that problem because even a copy of that ruling attached to this application is still undated. Mr. Njau, however, says they will be able to get a dated ruling before the intended appeal is filed. They filed the present application within two weeks after their previous appeal was struck out. There was no delay there and whether or not they will be able to mount a competent appeal if leave is granted, cannot prevent one for exercising my discretion in their favour.
Accordingly, I allow this application as prayed in paragraph one of the notice of motion and order that the notice of appeal be filed within seven days of the date hereof and the record of appeal be filed within twenty-one days from the date of filing of the notice of appeal. The costs of the application shall be costs in the appeal. Those are my orders.
Dated and delivered at Nairobi this 6th day of June, 1997.
R. S. C. OMOLO
---------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR