[1997] KECA 151 (KLR)
The court found that the applicant had provided sufficient explanation for the delay in filing the notice and record of appeal, including difficulties in tracing the court file and personal bereavement of the advocate. The omission of the date on which the notice of appeal was drawn was not considered fatal, as the...
Source-derived case information.
- Citation
- [1997] KECA 151 (KLR)
- Parties
- Applicant: Kenya National Capital Corporation; Respondent: John Ndungu Njau
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 163 of 1997
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- Application allowed. Extension of time granted.
- Judges
- AM Akiwumi
- Legal Topics
- Extension of Time, Notice of Appeal, Record of Appeal, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Capital Corporation
Applicant
John Ndungu Njau
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the notice and record of appeal.
- 2 Whether the omission of the date on which the notice of appeal was drawn renders it invalid.
- 3 Whether the court should exercise its discretion to extend time for filing the notice and record of appeal.
Ratio Decidendi
The court found that the applicant had provided sufficient explanation for the delay in filing the notice and record of appeal, including difficulties in tracing the court file and personal bereavement of the advocate. The omission of the date on which the notice of appeal was drawn was not considered fatal, as the notice was properly date-stamped and signed by the Deputy Registrar. The court exercised its discretion to grant the extension of time, allowing the applicant to file a fresh notice of appeal within seven days and the record of appeal within thirty days thereafter. The respondent, now acting in person, was awarded costs for the application.
Court Disposition
Application allowed. Extension of time granted.
Orders
- Applicant granted 7 days to file notice of appeal.
- Applicant granted 30 days thereafter to lodge record of appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPLICATION NO. NAI 163 OF 1997 (NAI.65/97 UR)
BETWEEN
KENYA NATIONAL CAPITAL CORPORATION .................. APPLICANT
AND
JOHN NDUNGU NJAU ....................................
(Application for extension of time to file and serve Notice and Record of Appeal against the Judgment of the High Court of Kenya at Nairobi (Justice Shah) dated 23rd December, 1994 in H.C.C.C. NO. 2560`A' OF 1989
R U L I N G
The present application is for the extension of time for the filing of a Notice of Appeal in an intended appeal and the related record of appeal. The applicant's original appeal had been struck out for being incompetent in that the date shown on the extracted decree as the date of the judgment, differed from that shown in the record of appeal as the date of judgment. Another reason was that a supplementary record of appeal had also been filed without leave. The striking out was on 17th January, 1997, and it was not until 2nd July, 1997, that the applicant filed the present application. The explanation for this delay was the time taken to obtain the rectification of the decree in the High Court, that is from 22nd January, 1997, when the related application was made, until 2nd July, 1997, was due to the difficulties experienced in tracing the court file in the High Court, and the funeral and burial arrangements that Advocate for the applicant became involved in due to the death of her father in May, 1997. The respondent who appeared in person did not oppose the application on this ground. He, however, opposed it on the ground that the notice that the applicant filed on 18th March, 1997, which is sought to be deemed to have been filed in time, though stamped with the High Court stamp as having been filed on 18th March, 1997, does not show the date when it was drawn.
I think that the substantial part of a Notice of Appeal is in this case, the notification of the applicant's dissatisfaction with the whole of the decision of the judge of the superior court, its intention to appeal in that respect, and the specification of the intended appellant's address and the address of the respondent on whom the Notice of Appeal would be served. The fact that the Notice of Appeal in question is date stamped by the registry of the High Court and signed by the Deputy Registrar of the High Court, in my view, makes the failure of the Notice of Appeal to contain the date on which it was drawn, in the circumstances, not such an omission that should render the Notice of Appeal useless. In anycase, if I come to the conclusion as I do, that I should exercise my unfettered discretion to extend time for the filing of the Notice of Appeal, I can grant time within which a fresh one should be filed.
In the result, I will grant the applicant 7 days within which to file its Notice of Appeal and 30 days thereafter within which to lodge its record of appeal. The applicant should note that the respondent is now acting in person. The respondent will have his costs for this application which is assessed at 1,500/= to be paid within 7 days of today, in default, execution to issue.
Dated and delivered at Nairobi this 8th day of July, 1997.
A. M. AKIWUMI
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.