[2008] KECA 66 (KLR)
The court found that the applicant, acting promptly after the withdrawal of its defective appeal and having already paid the decretal sum to the respondent, should not be barred from pursuing an appeal due to procedural errors, especially given the applicant's status as a layperson with disabilities. The interests...
Source-derived case information.
- Citation
- [2008] KECA 66 (KLR)
- Parties
- Applicant: Kariuki & Gathecha Resources Limited; Respondent: Wills O. Nyende t/a Nyende & Co., Advocates
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 276 of 2007
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File and Serve Record of Appeal
- Outcome
- application allowed
- Judges
- PK Tunoi
- Legal Topics
- Extension of Time, Appeals Process, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kariuki & Gathecha Resources Limited
Applicant
Wills O. Nyende t/a Nyende & Co., Advocates
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File and Serve Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted extension of time to file and serve a record of appeal out of time.
- 2 Whether procedural errors by a lay applicant should bar the exercise of discretion in favour of substantive justice.
Ratio Decidendi
The court found that the applicant, acting promptly after the withdrawal of its defective appeal and having already paid the decretal sum to the respondent, should not be barred from pursuing an appeal due to procedural errors, especially given the applicant's status as a layperson with disabilities. The interests of justice outweighed the procedural irregularities, and the respondent would not suffer prejudice if the extension was granted. The court exercised its discretion to allow the application, enabling the intended appeal to be heard on its merits.
Court Disposition
application allowed
Orders
- The applicant shall file and serve a notice of appeal within seven (7) days hereof.
- The applicant shall file a record of appeal 21 days after the service of the notice of appeal.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPLI. NAI NO. 276 OF 2007 (UR. 168/2007)
KARIUKI & GATHECHA RESOURCES LIMITED ….......................… APPLICANT
AND
WILLS O. NYENDE T/A NYENDE & CO., ADVOCATES ….……. RESPONDENT
(Application for extension of time to file and serve record of appeal out of time in an intended appeal from the judgment and decree of the High Court of Kenya at Nairobi (Milimani Commercial Courts) (Okwengu, J.) dated 10th July, 2007
in
H.C.MISC.APPLICATION NO. 343 OF 2007)
**********************
R U L I N G
The applicant applies for extension of time within which to file a record of appeal in an intended appeal against the decision of Okwengu, J. given on 10th July, 2007.
It is common ground that the applicant’s Civil Appeal No. 167 of 2007 challenging that said decision was by consent withdrawn on 30th October, 2007 on the ground that the appeal so filed was defective.
The applicant acts in this application through its Managing Director Mr. Dominic Gathecha who himself alleges is blind and semi-deaf. He prosecutes this application as a result of the applicant’s counsel having ceased to act for it after lodging the motion.
This application was filed on 6th November, 2007, about a week after the applicant’s appeal had been withdrawn. Thus, in my view, there was no delay in trying to take steps to mount a valid appeal. Again, it is not in issue that the respondent had been paid the entire decretal sum; and thus, he would not be prejudiced if the application is granted.
The applicant, being more or less, a layman, it is incumbent upon me to consider the interests of justice rather than the procedural errors rampant in the motion. For example, Mr. Nyende, the respondent, has submitted that the Court would be acting in futility if it granted the application since the applicant has not sought leave to file and serve a notice of appeal out of time. True, this averment is meritorious, but, the intended appeal should be allowed to see the light of the day and the matter in issue be heard on merit for the sake of justic.
In the result, I exercise my discretion in favour of the applicant and grant leave to lodge an appeal out of time. I make the following orders.
1. The applicant shall file and serve a notice of appeal within seven (7) days hereof.
2. The applicant shall file a record of appeal 21 days after the service of the notice of appeal.
3. The applicant shall pay to the respondent the costs of this application.
Dated and delivered at Nairobi this 17th day of October, 2008.
P.K. TUNOI
………………
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR