[2010] KEHC 2480 (KLR)
The High Court determined that it had no jurisdiction to entertain an application for enlargement of time to file a notice of appeal where the applicant had already filed the notice out of time. The proper forum for such an application is the Court of Appeal, as provided by statute and case law. Consequently, the...
Source-derived case information.
- Citation
- [2010] KEHC 2480 (KLR)
- Parties
- Appellant: Harrison Maina Kariuki; Appellant: John Kimani Kariuki; Appellant: Isaac Nganga Kariuki; Respondent: Jane Waithera Mungai; Respondent: Mungai Mutembei
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 77 of 2000
- Procedural Posture
- Civil Appeal / Application for Enlargement of Time to File Notice of Appeal
- Outcome
- Application struck out as incompetent for want of jurisdiction.
- Legal Topics
- Appeal Out of Time, Jurisdiction of High Court, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harrison Maina Kariuki
Appellant
John Kimani Kariuki
Appellant
Isaac Nganga Kariuki
Appellant
Jane Waithera Mungai
Respondent
Mungai Mutembei
Respondent
Procedural Posture
Civil Appeal / Application for Enlargement of Time to File Notice of Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to enlarge time for filing a notice of appeal after a notice has already been filed out of time.
- 2 Whether the application for enlargement of time is competent before the High Court.
Ratio Decidendi
The High Court determined that it had no jurisdiction to entertain an application for enlargement of time to file a notice of appeal where the applicant had already filed the notice out of time. The proper forum for such an application is the Court of Appeal, as provided by statute and case law. Consequently, the application before the High Court was incompetent and was struck out with costs to the respondents.
Court Disposition
Application struck out as incompetent for want of jurisdiction.
Orders
- The application for enlargement of time is struck out.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Appeal 77 of 2000
HARRISON MAINA KARIUKI........................................1ST APPELLANT
JOHN KIMANI KARIUKI................................................2ND APPELLANT
ISAAC NGANGA KARIUKI............................................3RD APPELLANT
VERSUS
JANE WAITHERA MUNGAI......................................1ST RESPONDENT
MUNGAI MUTEMBEI.................................................2ND RESPONDENT
JUDGMENT
On 30th October 2009 this court (Justice Mugo), upon the respondent’s application, dismissed this appeal for want of prosecution. Aggrieved by that ruling the 1st appellant filed a notice of appeal on 23rd November 2009 and applied for a copy of the proceedings to enable the appellants file a record of appeal. As that was after the 14 days period allowed for appeals to the Court of Appeal, they have now applied for enlargement of time to deem the said notice of appeal as having being filed timeously.
The application is based on the ground that the ruling was delivered in the absence of the appellants and without notice to them and that by the time they knew of it the time for filing the notice of appeal had already expired.
Mr. Ombati for the respondents strongly opposed the application arguing that the same is intended to perpetuate the injunction order which the appellants are enjoying.
Section 7 of the Appellate Jurisdiction Act read together with Rule 41 of the Court of Appeal Rules gives this court jurisdiction to extend time for the filing of the notice of appeal. However, where the applicant has already filed a notice of appeal, the matter is taken out of the jurisdiction of this court. In such a case the applicant has to make his application for enlargement of time to the Court of Appeal – Trimborn Agricultural Engineering Ltd Vs David Njoroge Kabaiko & Another, Civil Apl. No. 274 of 1998.
The applicants having filed a notice of appeal out of time this court has no jurisdiction to entertain this application. They therefore have to apply to the Court of Appeal. Their application in this court is in the circumstances incompetent and is accordingly struck out with costs to the respondents.
DATED and DELIVERED at Nakuru this 25th day of May, 2010.
D. K. MARAGA
JUDGE.