[1997] KECA 197 (KLR)
The court found that although the applicant failed to serve the respondents with a copy of the application for proceedings and ruling, which would have entitled him to the benefit of the proviso to rule 81(1), the respondents did not seriously oppose the application. Exercising its discretion under rule 4 of the...
Source-derived case information.
- Citation
- [1997] KECA 197 (KLR)
- Parties
- Applicant: John Githinji Wangondu; Respondent: Raphael Gitau Njau and 5 others
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 107 of 1997
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application 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
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Githinji Wangondu
Applicant
Raphael Gitau Njau and 5 others
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant is entitled to an extension of time to file an appeal despite failing to serve the respondents with a copy of the application for proceedings and ruling.
- 2 Whether the delay in lodging the intended appeal was inordinate.
Ratio Decidendi
The court found that although the applicant failed to serve the respondents with a copy of the application for proceedings and ruling, which would have entitled him to the benefit of the proviso to rule 81(1), the respondents did not seriously oppose the application. Exercising its discretion under rule 4 of the Court of Appeal Rules, the court determined that the interests of justice would be served by granting a limited extension of time for the applicant to lodge the intended appeal. The court considered the length of the delay and the procedural lapse but ultimately allowed the application, extending the time for filing the appeal by 15 days from the date of the ruling.
Court Disposition
application granted
Orders
- Time for lodging the intended appeal to the Court of Appeal is extended by 15 days from the date of this ruling.
- Costs of the application are awarded to the respondents in any event.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Gicheru, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 107 OF 1997
BETWEEN
JOHN GITHINJI WANGONDU..............................................APPLICANT
AND
RAPHAEL GITAU NJAU AND 5 OTHERS........................RESPONDENTS
(Application for extension of time to file appeal from the ruling and order of the
High Court of Kenya at Nairobi (Kuloba, J.)
in
H.C.C.C. 3065 OF 1996) ******************
RULING
The ruling in respect of which the applicant intends to appeal was given on 6th February, 1997 and on the following day - 7th February, 1997 - he applied for certified copies of the proceedings and ruling in the superior court but did not send a copy of that application to the respondents. On 11th February, 1997 the applicant lodged his Notice of Appeal in the superior court. He received certified copies of the proceedings and ruling on 9th April, 1997 but having not sent a copy of his application for the said proceedings and ruling to the respondents he could not avail himself the benefits of the proviso to rule 81(1) of the Rules of this Court. Hence the present application which was made on 15th May, 1997.
As of 15th May, 1997 the applicant was late in lodging his intended appeal to this Court by about 33 days and according to his counsel such delay was not inordinate. I am not so sure about that but had the applicant sent a copy of his application for the proceedings and ruling as is mentioned above to the respondents, he could have availed himself of the benefits of the proviso to rule 81(1) of the Rules of this Court and by the date of the present application - 15th May, 1997 - the time for lodging his intended appeal to this Court would not have run out. Counsel for the respondents does not, however, appear to be seriously opposed to the applicant's application and leaves the matter to the Court. In the result I, in the exercise of my discretion under rule 4 of the Rules of this Court, grant the applicant's application so that the time for lodging his intended appeal to this Court is extended by 15 days from today's date. The costs occasioned by this application are awarded to the respondents in any event.
Dated and delivered at Nairobi this 2nd day of October, 1997.
J.E. GICHERU
..............................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR