[1988] KECA 135 (KLR)
The court found that the delay in lodging the record of appeal was short and resulted from an excusable mistake by the applicant's advocate, who failed to copy the request for proceedings to the respondent. The court accepted the advocate's responsibility and apology, noting that there was an arguable appeal and...
Source-derived case information.
- Citation
- [1988] KECA 135 (KLR)
- Parties
- Appellant: Lydia Wanjiru Mwangi; Respondent: Rajnikant Joshi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Application 143 of 1987
- Procedural Posture
- Civil Application / Application for Extension of Time to File Appeal and Application to Strike Out Notice of Appeal
- Outcome
- Extension of time granted; application to strike out notice of appeal dismissed.
- Legal Topics
- Extension of Time, Appeal Procedure, Court of Appeal Rules, Review Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydia Wanjiru Mwangi
Appellant
Rajnikant Joshi
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Appeal and Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to lodge the record of appeal out of time.
- 2 Whether the respondent's application to strike out the notice of appeal for failure to lodge the record of appeal within time should succeed.
Ratio Decidendi
The court found that the delay in lodging the record of appeal was short and resulted from an excusable mistake by the applicant's advocate, who failed to copy the request for proceedings to the respondent. The court accepted the advocate's responsibility and apology, noting that there was an arguable appeal and that justice required granting an extension of time. The court applied the principle that short delays with acceptable excuses should not deprive an appellant of the right to appeal, especially where the appeal is not hopeless. Consequently, the court exercised its discretion under Rule 4 of the Court of Appeal Rules to grant the extension, and the respondent's application to...
Court Disposition
Extension of time granted; application to strike out notice of appeal dismissed.
Orders
- The applicant is granted an extension of 30 days from the date of the ruling to lodge the record of appeal.
- The application to strike out the notice of appeal is dismissed.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
(Coram: Platt, Gachuhi JJA &Masime Ag JA)
CIVIL APPLICATION NO NAI 143 OF 1987
BETWEEN
LYDIA WANJIRU MWANGI........................................APPELLANT
AND
RAJNIKANT JOSHI...............................................RESPONDENT
(Application for extension of time to file an appeal from a Ruling of the High Court at Mombasa, Bhandari J)
RULING
January 28, 1988, Platt, Gachuhi JJA & Masime Ag JAdelivered the following Ruling.
There are before the Court two applications Nos 143 of 1987 and No 6 of 1988. In the first, the applicant Lydia Wanjiru Mwangi seeks an extension of time to lodge the record of appeal out of time. In the second, Rajnikant Joshi seeks to strike out the notice of appeal because a step has not been taken, namely, to lodge the record of appeal within time. Thus under Rule 80 of the Court of Appeal Rules the appeal may be struck out. In accordance with our usual practice both applications were heard together, the application for leave to extend time being heard first.
The Ruling of the High Court was given on July 3, 1987. It was a ruling on an application for review. Such a ruling concerns the nature of the review process rather than the fact that there was a consent judgment.
Notice of appeal was given on July 7, 1987. On July 9, copies of proceedings and ruling were bespoken. Unfortunately, Mr Gikandi failed to copy this request to the respondent. Had he done so, then under Rule 81 of the Rules, the time taken to obtain the copies would have been extended. It would then not have been out of time in all probability. But the proceedings were received on August 28, 1987 and sent back for correction. They were finally received on September 7, 1987. The full 60 days had been sent on July 7, 1987. Mr Gikandi then found his mistake and applied for extension of time on September 14, 1987. He had taken 67 days and in another sense he was 7 days late. Mr Gikandi takes full responsibility for the lapse. He blames nobody else.
Mr Khanna complains that the affidavit in support lacks particulars. It would of course have been as well to have included them. They were connected with the time Mr Gikandi sustained his mistake and the nature of the corrections he called for on the copies of proceedings.
But looking at the matter as a whole, we find that there is enough material upon which to make a just order, as is required by Rule 4 of the Rules.
The proper approach is to be found in Gatti vs Shoosmith[1939] 3 All ER 916 which was elucidated in Palata Investments Ltd vs Sinfield Ltd( see the Times Law Report of May 28, 1985). It was then said:
“The previous practise of in relation to applications for leave to appeal out of time was for the Court to concentrate on the circumstances of the delay (See Gatti’scase above). In that case there had been a delay of a few days caused by the mistake of a legal adviser, and the Court of appeal held that it was a proper case for them to exercise their jurisdiction to grant leave.
…….. having drawn attention to the old procedure, their Lordships expressed the opinion that in cases where the delay was very short and there was an acceptable excuse in the delay as a general rule the appellant should not be deprived of his right of appeal and so no question of the merits of the appeal would arise.”
We have often pointed out that this approach should guide us. Of course if the appeal has absolutely no chance of success no doubt that would be a factor to be borne in mind. Here, there is an arguable appeal. We accept Mr Gikandi’s apology for his mistake and grant his client an extension of time.
The Record of appeal shall be lodged in 30 days from todays date.
As a result, the application to strike out the appeal has been overreached.
The applicant must pay the costs of both applications.
Dated and delivered at Mombasa this 28th day of January , 1988
H.G PLATT
.............................
JUDGE OF APPEAL
J.M GACHUHI
.............................
JUDGE OF APPEAL
J.RO MASIME
.............................
AG. JUDGE OF APPEAL