[2001] KECA 142 (KLR)
The court exercised its discretion to grant the extension of time sought by the applicant, finding that the failure to file the notice and record of appeal within time was due to a genuine and excusable mistake by counsel in not diarizing the judgment date. The absence of opposition from the most affected respondent...
Source-derived case information.
- Citation
- [2001] KECA 142 (KLR)
- Parties
- Applicant: Iddah Muthoni Njue; Respondent: Robert Kariuki Muchuki; Respondent: Harrison Gakumo Thuku
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 126 of 2001
- Procedural Posture
- Civil Misc Application / Application for Extension of Time
- Outcome
- Application allowed.
- Judges
- AB Shah
- Legal Topics
- Extension of Time, Appeal Procedure, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Iddah Muthoni Njue
Applicant
Robert Kariuki Muchuki
Respondent
Harrison Gakumo Thuku
Respondent
Procedural Posture
Civil Misc Application / Application for Extension of Time
Legal Issues
- 1 Whether the applicant should be granted extension of time to file notice and record of appeal out of time.
- 2 Whether the mistake of counsel in failing to diarize the judgment date is excusable.
Ratio Decidendi
The court exercised its discretion to grant the extension of time sought by the applicant, finding that the failure to file the notice and record of appeal within time was due to a genuine and excusable mistake by counsel in not diarizing the judgment date. The absence of opposition from the most affected respondent further supported the grant of the application. The court ordered specific timelines for lodging and serving the notice of appeal and for filing the record of appeal, ensuring procedural compliance while not penalizing the applicant for her counsel's error.
Court Disposition
Application allowed.
Orders
- Notice of appeal to be lodged in the superior court within seven days.
- Copies of the notice of appeal to be served on advocates for both respondents within seven days thereafter.
Full Case Text
Judgment text and source record
15 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL MISC APPL 126 OF 2001
IDDAH MUTHONI NJUE ..............................................APPLICANT
AND
1. ROBERT KARIUKI MUCHUKI
2. HARRISON GAKUMO THUKU .........................RESPONDENTS
R U L I N G
The second respondent, the party most affected by the intended appeal, is not opposing the application now before me. The applicant seeks extension of time to lodge her notice of appeal as well as record of appeal out of time. Miss Mwaura who appears for the second respondent accepts that the applicant's counsel made a genuine mistake when he overlooked entering, in his diary, the date for judgment. Such an error is excusable. In the exercise of my discretion I allow the application and order that a notice of appeal be lodged in the superior court within the next seven days and copies thereof be served on advocates for both the respondents within seven days thereafter. The record of appeal may be filed within 60 days of the time the applicant is notified that the copies of the proceedings and judgment are ready for collection. Costs of this application shall be in the intended appeal.
Dated and delivered at Nairobi this 24th day of July, 2001.
A.B. SHAH
......................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.