[1998] KECA 118 (KLR)
The court found that the applicants filed their application for extension of time without delay upon discovering the missing document that led to the striking out of their original appeal. There was no evidence on record to support the respondent's claim that the application was an abuse of process or intended to...
Source-derived case information.
- Citation
- [1998] KECA 118 (KLR)
- Parties
- Appellant: Joseph Lima & 86 Others; Respondent: Ann Merz
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 136 of 1998
- Procedural Posture
- Civil Application / Application for Extension of Time to File and Serve Notice and Record of Appeal
- Outcome
- application allowed
- Judges
- JE Gicheru
- Legal Topics
- Extension of Time, Appeals Process, Court of Appeal Rules, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Lima & 86 Others
Appellant
Ann Merz
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File and Serve Notice and Record of Appeal
Legal Issues
- 1 Whether the applicants are entitled to an extension of time to file and serve the notice and record of appeal under rule 4 of the Court of Appeal Rules.
- 2 Whether the application constitutes an abuse of the court process or is calculated to delay justice.
- 3 Whether the intended appeal is arguable or frivolous.
Ratio Decidendi
The court found that the applicants filed their application for extension of time without delay upon discovering the missing document that led to the striking out of their original appeal. There was no evidence on record to support the respondent's claim that the application was an abuse of process or intended to delay justice. The court held that it would not be justified to deny the applicants the opportunity to pursue their intended appeal, and thus exercised its discretion to grant the extension of time sought. The court did not make a determination on the arguability of the intended appeal at this stage, as it was not the appropriate juncture to do so.
Court Disposition
application allowed
Orders
- Time to lodge notice of appeal extended by 7 days from the date of the ruling.
- Applicants to lodge record of appeal within 15 days from the date of lodging the notice of appeal.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE COURT OF APPEAL AT NYERI (Coram: Gicheru, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 136 OF 1998 (NYR. 11/98) BETWEEN
JOSEPH LIMA & 86 OTHERS..............................APPELLANT
AND
ANN MERZ.............................................RESPONDENT
(Application for extension of time to file and serve Notice and record of Appeal in an intended appeal from the Ruling and order of the High Court of Kenya at Meru (Ong'udi, J.)
in
H.C.C.C. NO. 393 OF 1994)
***********************
RULING:
By a notice of preliminary objection dated and filed in this Court on 23rd October, 1998, the respondent herein indicated that at the hearing of the applicants' application she would object to the same for the reason that it did not indicate the nature of the notice and the record of appeal upon which the discretion of this Court under rule 4 of the Court of Appeal Rules may be exercised and that the said application was an abuse of the process of this Court and was calculated to delay justice for the respondent in the Meru High Court Civil Case NO. 392 of 1994.
When this application came up for hearing on 27th October, 1998, counsel for the respondent, Mr. Mwenesi, urged the respondent's preliminary objection in his response to the submission of counsel for the applicants, Mr. Kariuki, the thrust of which was that the applicants were trifling with this Court as the matter intended to be appealed against concerned the exercise of discretion by the superior court in striking out the applicants' suit for being frivolous and an abuse of the process of that court.According to counsel, such a matter was not subject to an application such as the present one as the applicants' intended appeal was not arguable.
The applicants' original appeal NO. 291 of 1996 was struck out by this Court on 12th May, 1998 for the reason that the record of that appeal did not contain a master roll which was tendered in evidence in the superior court in breach of rule 85(1)(f) of the Court of Appeal Rules. On the same day, the applicants filed the present application seeking extension of time to lodge the notice and the record of appeal having now found the omitted master roll in their original appeal referred to above.
Without doubt the applicants' application was filed in this Court without delay on finding the document that had resulted in their original appeal being struck out. Whether or not their intended appeal is arguable may not be for me as of now to decide and in any event there is no material in the record of this application upon which it can be said that the applicants in making this application are trifling with this Court. I cannot with justification deny them the opportunity to ventilate their dissatisfaction with the decision of the superior court in this Court in the circumstances of this application. In the result and in the exercise of my discretion - under rule 4, supra, I grant the applicants' application and extend time within which to lodge their notice of appeal by 7 days from today's date and thereafter they are to lodge their record of appeal within 15 days from the date of lodging their notice of appeal.
The respondent shall have the costs of this application assessed at KShs. 3,000/- payable within the next 30 days from the date hereof failing which execution to issue.
Dated and delivered at Nyeri this 29th day of October, 1998.
J.E. GICHERU
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR