[1997] KECA 146 (KLR)
The court exercised its discretion to allow the application for extension of time, emphasizing that the applicant, as a layman, should not suffer due to his advocate's ignorance of the rules. The court noted that the application was technically unnecessary since the time to file the appeal had not yet expired, but...
Source-derived case information.
- Citation
- [1997] KECA 146 (KLR)
- Parties
- Applicant: John Njiru Muya; Respondent: Nguu Muya; Respondent: Daniel Mukunya
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 157 of 1997
- Procedural Posture
- Civil Application / Application for Extension of Time to File Record of Appeal
- Outcome
- Application allowed. Extension of time granted to file record of appeal within 21 days. Costs awarded to respondents as pre-condition.
- Judges
- AB Shah
- Legal Topics
- Extension of Time, Appeals Process, Court Rules Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njiru Muya
Applicant
Nguu Muya
Respondent
Daniel Mukunya
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file the record of appeal.
- 2 Whether ignorance of court rules by the applicant's advocate should prejudice the applicant.
Ratio Decidendi
The court exercised its discretion to allow the application for extension of time, emphasizing that the applicant, as a layman, should not suffer due to his advocate's ignorance of the rules. The court noted that the application was technically unnecessary since the time to file the appeal had not yet expired, but nonetheless granted the extension to avoid prejudicing the applicant. The court also directed that the record of appeal, including the notice of appeal and a copy of the ruling, be filed within 21 days, and awarded costs of the application to the respondents as a pre-condition for filing the record of appeal.
Court Disposition
Application allowed. Extension of time granted to file record of appeal within 21 days. Costs awarded to respondents as pre-condition.
Orders
- The application for extension of time is allowed.
- The record of appeal, including the notice of appeal dated 18th November, 1996 filed on 21st November, 1996 and a copy of this ruling, shall be filed within 21 days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI
(CORAM: SHAH, J.A. (IN CHAMBERS))
CIVIL APPLICATION NO. NAI 157 OF 1997 (NYR 8/98) BETWEEN
JOHN NJIRU MUYA.......................................APPLICANT
AND
1. NGUU MUYA
2. DANIEL MUKUNYA...................................RESPONDENTS
(Application for extension of time within which to file record of appeal from a ruling and order of the High Court of Kenya at Nyeri (Mr. Justice J.A. Osiemo) dated 14th November, 1996 in H.C.C.A. NO. 102 OF 1993) ***********
R U L I N G
It is indeed amazing that Mr. Kathungu was not aware of the well known proviso to rule 81 of the Rules of this Court Mr. Kariithi has correctly pointed out that Mr. Kathungu ought to have known of the said proviso. In fact at the time this application was filed the time to file the appeal itself had not run out. Instead of filing the appeal the applicant filed this application.
Whilst I deprecate the fact that an advocate does not read the rules I cannot allow the innocent (rule-wise) layman applicant to suffer.
Therefore, in my discretion, I allow this application. The record of appeal, which should include a copy of the notice of appeal dated 18th November, 1996 filed on 21st November, 1996 will form part of the record together with a copy of this ruling.
Mr. Kariithi raised the issue of merits. As a single judge I would not want to go into the merits of the appeal as that is a pressure of the full court on appeal. The record of appeal shall be filed within the next 21 days. The respondents will have costs of this application which I assess at shs.4000/- is also a pre-condition to filing of record of appeal.
Dated and delivered at Nyeri this 30th day of October, 1997.
A. B. SHAH
................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR