[1997] KECA 231 (KLR)
Despite the applicant's repeated and arguably vexatious attempts to file a proper record of appeal, the court exercised its discretion to allow the application for extension of time. The judge considered that, in the interests of justice, the applicant's complaint should be heard on its merits and determined finally...
Source-derived case information.
- Citation
- [1997] KECA 231 (KLR)
- Parties
- Applicant: James Mwashori Mwakio; Respondent: Kenya Commercial Bank Ltd.
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 135 of 1997
- Procedural Posture
- Civil Application / Application for Leave to File Notice of Appeal and Record of Appeal Out of Time
- Outcome
- Application allowed with conditions.
- Legal Topics
- Extension of Time, Appeals Process, Procedural Non Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwashori Mwakio
Applicant
Kenya Commercial Bank Ltd.
Respondent
Procedural Posture
Civil Application / Application for Leave to File Notice of Appeal and Record of Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file a notice of appeal and record of appeal out of time.
- 2 Whether repeated applications by the applicant amount to harassment or abuse of process.
- 3 Whether the respondent should be compelled to assist the applicant in lodging a proper appeal due to the applicant's lack of legal knowledge.
Ratio Decidendi
Despite the applicant's repeated and arguably vexatious attempts to file a proper record of appeal, the court exercised its discretion to allow the application for extension of time. The judge considered that, in the interests of justice, the applicant's complaint should be heard on its merits and determined finally by the court. However, the court also recognized the burden placed on the respondent by these repeated applications and therefore awarded costs to the respondent, to be paid before the filing of the record of appeal. The court declined to order the respondent or its counsel to assist the applicant in lodging the appeal, holding that such assistance is not warranted by the...
Court Disposition
Application allowed with conditions.
Orders
- The Notice of Appeal shall be filed within 7 days from the date of the ruling.
- The record of appeal shall be lodged within 30 days from the date of filing the Notice of Appeal.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: TUNOI, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 135 OF 1997 (57/97 UR)
BETWEEN
JAMES MWASHORI MWAKIO ................................APPLICANT
AND
KENYA COMMERCIAL BANK LTD. ..........................RESPONDENT
(Application for leave to file Notice of Appeal and Record of Appeal out of time in an appeal from a ruling of the High Court of Kenya at Nairobi (Mr. Justice Pall) dated 26th July, 1995 in H.C.C.C. NO. 2815 OF 1980) **********************
RULING
Civil Appeal Number 48 of 1997 was struck out on June 6th, 1997, because the record of appeal did not include some pages of the ruling appealed against as is mandatorily required by rule 85 (1)(g) of the Rules. Immediately thereafter, the applicant, the appellant in the said appeal, lodged this application which is the third in his attempts to lodge a proper record of appeal. I agree with Mr. Le Pelley, counsel for the respondent, that the respondent has actually been harassed by the applicant in such frivolous and vexatious proceedings and that the respondent should not be put to the expense of the applicant's further attempts to file his intended appeal. I also agree with him that the decision of Pall, J. (as he then was) may be perfectly correct. But I am not now hearing the substantive appeal. However, in all the circumstances of the case, I am disposed to exercise my discretion in favour of the applicant so that his complaint may be ventilated by this Court on merits and decided finally. The application is accordingly allowed as follows:-
1. The Notice of Appeal shall be filed within 7 days from today.
2. The record of appeal shall be lodged within 30 days from the date of filing the Notice of Appeal.
3. The applicant shall pay the respondent costs of this application which I assess at Shs.4,000/= to be paid before the filing of the Record of Appeal, failing which this application shall stand dismissed.
I am unable to concede to the applicant's peculiar prayer to order Mr. Le Pelley or the respondent to assist the applicant to lodge a proper appeal on the grounds that he is a layman devoid of legal knowledge.
Dated and delivered at Nairobi this 20th day of June , 1997.
P. K. TUNOI
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR