[2002] KECA 61 (KLR)
The court found that the eight-day delay in lodging the notice of appeal was not so inordinate as to deprive the applicants of their right to appeal, especially since the delay was not attributable to any fault on their part. The absence of a replying affidavit from the respondent and the circumstances surrounding...
Source-derived case information.
- Citation
- [2002] KECA 61 (KLR)
- Parties
- Applicant: John Gitau Karogo; Applicant: Anwarali Brothers Limited; Respondent: Paul Khaemba
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 359 of 2001
- Procedural Posture
- Civil Application / Application for Extension of Time to Validate Notice of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Notice of Appeal, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Gitau Karogo
Applicant
Anwarali Brothers Limited
Applicant
Paul Khaemba
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to Validate Notice of Appeal
Legal Issues
- 1 Whether the applicants should be granted an extension of time to validate a notice of appeal lodged out of time.
- 2 Whether the delay of eight days in lodging the notice of appeal was inordinate and disentitled the applicants from the right of appeal.
Ratio Decidendi
The court found that the eight-day delay in lodging the notice of appeal was not so inordinate as to deprive the applicants of their right to appeal, especially since the delay was not attributable to any fault on their part. The absence of a replying affidavit from the respondent and the circumstances surrounding the delivery of the judgment justified the grant of the extension. The court exercised its discretion to allow the application, validating the notice of appeal and setting a timeline for lodging the record of appeal.
Court Disposition
application allowed
Orders
- The notice of appeal lodged on 28th August, 2001 is deemed to be lodged in time.
- The record of appeal shall be lodged within 60 days after receipt by the applicants' advocates of the copy of proceedings.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
CORAM: SHAH, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI 359 OF 2001
BETWEEN
JOHN GITAU KAROGO
ANWARALI BROTHERS LIMITED ..............APPLICANTS
AND
PAUL KHAEMBA .......................................... RESPONDENT
(An application for extension of time to validate the
notice of appeal lodged out of time against a
judgment of the High Court of Kenya at Eldoret
(Nambuye J) dated 6th August, 2001
in
ELD. H.C.C.C. NO. R 13 OF 1999)
************************
R U L I N G
The respondent, though served with the hearing notice for to-day's hearing, is not here. The application before me, as amended, is to validate a notice of appeal lodged by the applicants, some eight days out of time. It does appear that the judgment sought to be appealed against was not delivered on the date notified for such delivery, that is 3rd August, 2001. In the absence of a replying affidavit by or on behalf of the respondent, I have no reason to believe that the applicants' advocates were aware of the new date for delivery of judgment. The factor that has weighed on my mind is that although the applicants' advocates were aware of the main contents of the judgment by 14th August, 2001, they did not lodge the notice of appeal until 28th August, 2001. They could have lodged the same by 20th August, 2001 to be within time. However, the eight day delay is not so inordinate as to disentitle the applicants from exercising their undoubted right of appeal. It is not the applicants' fault that their notice of appeal was not lodged in time.
I allow this application and order that the notice of appeal lodged on 28th August, 2001 is deemed to be lodged in time. As a copy of proceedings has not been availed to the applicants I order that the record of appeal be lodged within 60 days after receipt by the applicants' advocates of such copy. I make no order as to costs.
Dated and delivered at Nakuru this 19th day of February, 2002.
A. B. SHAH
---------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR