[2000] KECA 192 (KLR)
The court found that the use of 'and others' in the notice of appeal was a procedural error attributable to counsel, not the applicants. The applicants believed their appeal was being properly processed and acted promptly upon learning of the defect. The court held that such an error should not bar the applicants...
Source-derived case information.
- Citation
- [2000] KECA 192 (KLR)
- Parties
- Applicant: Joseph Kamau Musa; Applicant: James Kariuki Muchiri; Applicant: David Muchiri; Applicant: Ruigu Njiriri; Applicant: Joseph Njehu Boro; Applicant: Mwangi Karigi; Applicant: Kiruki Muchina; Applicant: Mburu Muchina; Applicant: Mbugua Ndugo; Applicant: Hannah W. Kibunja; Applicant: Thuthruiki Co. Ltd; Applicant: Kimani Kahiro; Applicant: Gacohi Njuguna; Applicant: Wanjiru Kanyoko; Applicant: S.M. Njuguna; Applicant: Dorcas Wanjiru; Applicant: Ngugi Kamau; Applicant: George Kiarie Warui; Applicant: Kigathi Gacara; Applicant: Kimani Cumbi; Applicant: Joseph Kuria; Applicant: Chege Karumba; Applicant: Kanika Muchina; Applicant: Karanja Mbaya; Applicant: Ngure Tharua; Applicant: Robert Karari; Applicant: Ruigu Kabuco; Applicant: Samuel Mukiri Ngotho; Applicant: Danie Kago; Applicant: Alose Njoroge; Applicant: Elizabeth M. Miringu; Applicant: John Njenga Kibunja; Applicant: Macharia Chege; Applicant: Warui Mwaura; Applicant: Ndungu Thuo; Applicant: Njihia Muchai; Respondent: Ereri Company Ltd; Respondent: Gikonyo Ndirangu; Respondent: Ruigu Kabuco; Respondent: Dr. George Kamau Gikanga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 156 of 1999
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- Application allowed. Leave granted to file notice of appeal out of time. Costs awarded to respondents.
- Judges
- AB Shah
- Legal Topics
- Extension of Time, Notice of Appeal, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kamau Musa
Applicant
James Kariuki Muchiri
Applicant
David Muchiri
Applicant
Ruigu Njiriri
Applicant
Joseph Njehu Boro
Applicant
Mwangi Karigi
Applicant
Kiruki Muchina
Applicant
Mburu Muchina
Applicant
Mbugua Ndugo
Applicant
Hannah W. Kibunja
Applicant
Thuthruiki Co. Ltd
Applicant
Kimani Kahiro
Applicant
Gacohi Njuguna
Applicant
Wanjiru Kanyoko
Applicant
S.M. Njuguna
Applicant
Dorcas Wanjiru
Applicant
Ngugi Kamau
Applicant
George Kiarie Warui
Applicant
Kigathi Gacara
Applicant
Kimani Cumbi
Applicant
Joseph Kuria
Applicant
Chege Karumba
Applicant
Kanika Muchina
Applicant
Karanja Mbaya
Applicant
Ngure Tharua
Applicant
Robert Karari
Applicant
Ruigu Kabuco
Applicant
Samuel Mukiri Ngotho
Applicant
Danie Kago
Applicant
Alose Njoroge
Applicant
Elizabeth M. Miringu
Applicant
John Njenga Kibunja
Applicant
Macharia Chege
Applicant
Warui Mwaura
Applicant
Ndungu Thuo
Applicant
Njihia Muchai
Applicant
Ereri Company Ltd
Respondent
Gikonyo Ndirangu
Respondent
Ruigu Kabuco
Respondent
Dr. George Kamau Gikanga
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicants should be granted leave to file a notice of appeal out of time.
- 2 Whether the error of counsel in using 'and others' in the notice of appeal is excusable.
- 3 Whether the delay in filing the notice of appeal and record of appeal is justified.
Ratio Decidendi
The court found that the use of 'and others' in the notice of appeal was a procedural error attributable to counsel, not the applicants. The applicants believed their appeal was being properly processed and acted promptly upon learning of the defect. The court held that such an error should not bar the applicants from exercising their statutory right of appeal. The application for extension of time was made without undue delay following the court's ruling that invalidated the previous notice of appeal. The court further noted that delays in obtaining court proceedings are common and not necessarily the fault of the applicants. The court exercised its discretion in favour of the...
Court Disposition
Application allowed. Leave granted to file notice of appeal out of time. Costs awarded to respondents.
Orders
- Applicants to lodge their notice of appeal within 10 days.
- Applicants to pay respondents costs of KES 7,500 within 30 days, failing which execution may issue.
Full Case Text
Judgment text and source record
72 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI
CORAM: SHAH, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 156 OF 1999
BETWEEN
1. JOSEPH KAMAU MUSA
2. JAMES KARIUKI MUCHIRI
3. DAVID MUCHIRI
4. RUIGU NJIRIRI
5. JOSEPH NJEHU BORO
6. MWANGI KARIGI
7. KIRUKI MUCHINA
8. MBURU MUCHINA
9. MBUGUA NDUGO
10. HANNAH W. KIBUNJA
11. THUTHRUIKI CO. LTD
12. KIMANI KAHIRO
13. GACOHI NJUGUNA
14. WANJIRU KANYOKO
15. S.M. NJUGUNA
16. DORCAS WANJIRU
17. NGUGI KAMAU
18. GEORGE KIARIE WARUI
19. KIGATHI GACARA
20. KIMANI CUMBI
21. JOSEPH KURIA
22. CHEGE KARUMBA
23. KANIKA MUCHINA
24. KARANJA MBAYA
25. NGURE THARUA
26. ROBERT KARARI
27. RUIGU KABUCO
28. SAMUEL MUKIRI NGOTHO
29. DANIE KAGO
30. ALOSE NJOROGE
31. ELIZABETH M. MIRINGU
32. JOHN NJENGA KIBUNJA
33. MACHARIA CHEGE
34. WARUI MWAURA
35. NDUNGU THUO
36. NJIHIA
MUCHAI...................................APPLICANTS
AND
1. ERERI COMPANY LTD
2. GIKONYO NDIRANGU
3. RUIGU KABUCO
4. DR. GEORGE KAMAU GIKANGA.......................RESPONDENTS
(Application for leave to file notice of appeal out of time from the judgment of the High Court of Kenya (Mr. Justice Mbito) dated 19th November, 1997
in
H.C.C.C. NO. 3746 OF 1988
as consolidated with
H.C.C..C NO. 3200 OF 1990)
*****************
R U L I N G
On 9th June, 1999 this Court dismissed an application filed on 4th March, 1998 by Ndungu Kiiru, Joseph Kamau Musa, James Kariuki Muchiri, Kamau Kunga, Boniface Mwangi Ndegwa and Mwangi Kiraga, on behalf of themselves and 44 other shareholders of Ereri Company Limited,those 44 not having been named. The application was for an injunction pending appeal from the judgment of the superior court (Mbito, J) delivered on 19th November, 1997.
The court said that there was "considerable disparity in the persons who gave the notice of appeal and those who filed the notice of motion; that there was also variance with the plaintiffs in the amended plaint". Having said so this Court concluded that that disparity and uncertainty rendered the notice of appeal filed by Ndungu Kiiru invalid. As there was no valid notice of appeal the court did not grant the injunction sought under rule 5(2)(b) of the Rules of this Court3. 6 applicants are now before me seeking leave to lodge their notice of appeal out of time. The ground they are advancing for obtaining such leave is that the applicants' counsel was of a mistaken view that a notice of appeal lodged without all names of the proposed appellants, but with the words "and others" was proper; of course it was not and the Court rightly rejected the same as not being a valid notice of appeal.
The "and others" are now before me, therefore, seeking extension of time to lodge a fresh notice of appeal whereas Ndungu Kiiru says through his counsel that his notice of appeal as lodged can remain and will become a part of the record of appeal when the said record will be lodged.
This application was lodged within two weeks of the date of the ruling of the Court dated 9th June, 1999. This application has been lodged, therefore, without undue delay and I will consider it.
Mr. Ochieng Oduol who appeared for the respondents objected to the application on the ground that as the original notice of appeal does not stand struck out this application is premature. He also objected to the 36 present applicants coming now, after some 29 months, seeking extension of time to lodge their notice of appeal. He also took issue with the delay in the lodgment of the record of appeal itself, judgment sought to be appealed against having been delivered on 19th November, 1997. He argued also that no explanation was given as to why the words "and others" were used.
The applicants probably believed that their intended appeal was in the process of being lodged. Little did they know that the notice of appeal lodged on their behalf was defective. In fact "and others" being included in the notice appeal means nothing. There was no notice of appeal for those 36 persons and this enables me to consider whether such error on part of their counsel is excusable enough to enable me to allow the 36 persons to lodge their notice of appeal now.
Counsel's error in saying "and others" ought not be visited, in my view, on the applicants who, as I said earlier, probably believed that their intended appeal, filing of which is their statutory right, was in the process of being lodged.
The notice of appeal still on record, in my view, is applicable only to Ndung'u Kiiru, and I see no impediment in the way of the 36 applicants now before me to lodge their notice of appeal in one document.
The alleged delay in the lodgment of the record of appeal is being attributed to delay in obtaining copies of proceedings and judgment. I know there are delays in the High Court with regard to typing out and checking of proceedings.
Sitting as a single Judge, I cannot decide that the delay is such as not to entitle the present applicants leave to lodge their notice of appeal. That is in the province of the full bench when seized of an application to strike out a notice of appeal on account of an essential step not having been taken.
Having considered all the circumstances appertinent to the matter which is now before me I do exercise my discretion in favour of the applicants and order that they do lodge their notice of appeal within the next 10 days.
The respondents would however have costs of this application as it is not their fault that the notice of appeal in the first instance was ineffective so far as the applicants are concerned. I assess these costs at Shs.7,500 and I order that unless these costs are paid within the next 30 days execution may issue.
Dated and delivered at Nairobi this 14th day of March, 2000.
A.B. SHAH
.................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.