[2001] KECA 27 (KLR)
The court found that the applicant was not guilty of dilatoriness, as the application for extension of time was made promptly after the original appeal was struck out. The merits of the intended appeal were not for determination at this stage by a single judge. Exercising discretion under rule 4 of the Court of...
Source-derived case information.
- Citation
- [2001] KECA 27 (KLR)
- Parties
- Applicant: James Macharia Njore; Respondent: Peter Paul Mburu Ndururi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 61 of 1998
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- Application for extension of time granted.
- Judges
- JE Gicheru
- Legal Topics
- Extension of Time, Appeals Process, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Macharia Njore
Applicant
Peter Paul Mburu Ndururi
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 is entitled to an extension of time to file and serve a notice of appeal and record of appeal.
- 2 Whether the applicant was guilty of dilatoriness in bringing the application for extension of time.
- 3 Whether the merits of the intended appeal should be considered at this stage.
Ratio Decidendi
The court found that the applicant was not guilty of dilatoriness, as the application for extension of time was made promptly after the original appeal was struck out. The merits of the intended appeal were not for determination at this stage by a single judge. Exercising discretion under rule 4 of the Court of Appeal Rules, the court granted the extension sought, allowing the applicant seven days from the date of the ruling to lodge the notice of appeal and fifteen days from the date of lodging the notice to file the record of appeal. Costs of K.Shs. 3,000 were awarded to the respondent, payable within thirty days, with execution to ensue in default.
Court Disposition
Application for extension of time granted.
Orders
- Time for lodging the notice of appeal is extended by 7 days from the date of the ruling.
- Time for lodging the record of appeal is extended by 15 days from the date of lodging the notice of appeal within the extended time.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE COURT OF APPEAL AT NAIROBI
CIVIL APPLICATION NO. 61 OF 1998
JAMES MACHARIA NJORE............................................................APPLICANT
AND
PETER PAUL MBURU NDURURI................................................RESPONDENT
(An application for extension of time to file a notice of appeal in an intended appeal from a Ruling of the High Court of Kenya at Nairobi (Mbito, J.) dated 3/12/97
in
H.C.C.C. NO. 807 OF 1997)
************************
R U L I N G:
In this application, the applicant is seeking extension of time to file and serve a notice of appeal and the record of appeal. The applicant's original Civil Appeal NO. 289 of 1997 was struck out by this Court on 16th March, 1998 for the reason that the record of that appeal did not comply with rule 85(1)(f) of the Court of Appeal Rules. The present application was made on 19th March, 1998. There was therefore no dilatoriness in making the application.
Counsel for the respondent argues that the applicant's intended appeal is frivolous and on account of that the same should be rejected. Counsel, however, submits that if the Court was inclined to grant the applicant's application, then the costs occasioned by said application should be awarded to the respondent.
It is not for me as a single judge of this Court in an application such as the present one to determine whether or not the applicant's intended appeal is meritorious. But one thing is clear: the applicant cannot be accused of dilatoriness in making the present application. On account of this and in exercise of my discretion under rule 4 of the Court of Appeal Rules, I grant the applicant's application so that the time for lodging the notice of appeal is extended by 7 days from today's date and the time for lodging the record of appeal is extended by 15 days from the date of lodging the notice of appeal within the extended time. The costs occasioned by the applicant's application assessed at K.Shs. 3,000/- are awarded to the respondent and should be paid to him within the next 30 days from the date hereof failing which execution to ensue.
Dated and delivered at Nairobi this 26th day of April, 2001.
J.E. GICHERU
..............................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR