[1998] KECA 218 (KLR)
The court found that the delay in serving the record of appeal was due to an oversight by the applicants' counsel, which, while regrettable, was not inordinate. The court held that litigants should not be penalized for such oversight where no substantial prejudice is caused to the respondent. Exercising its...
Source-derived case information.
- Citation
- [1998] KECA 218 (KLR)
- Parties
- Applicant: Kihonge Nganga; Applicant: Laura Waithera; Applicant: Alice Mumbi; Respondent: Kenya Commercial Finance Company Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 309 of 1997
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application granted
- Legal Topics
- Extension of Time, Appeal Rights, Procedural Default
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kihonge Nganga
Applicant
Laura Waithera
Applicant
Alice Mumbi
Applicant
Kenya Commercial Finance Company Ltd
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicants have provided sufficient reason for the delay in serving the record of appeal out of time.
- 2 Whether the court should exercise its discretion to extend time for filing a fresh notice and record of appeal.
- 3 Whether the respondent would suffer prejudice if the extension is granted.
Ratio Decidendi
The court found that the delay in serving the record of appeal was due to an oversight by the applicants' counsel, which, while regrettable, was not inordinate. The court held that litigants should not be penalized for such oversight where no substantial prejudice is caused to the respondent. Exercising its discretion under Rule 4 of the Court of Appeal Rules, the court determined that it was just to extend the time for filing a fresh notice and record of appeal, thereby allowing the applicants to pursue their appeal on the merits. The respondent was awarded costs assessed at Kshs. 6,000.
Court Disposition
application granted
Orders
- Applicants to file notice of appeal within seven days from the date of the ruling.
- Applicants to file record of appeal within thirty days thereafter.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: SHAH J.A. IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 309 OF 1997
BETWEEN
1. KIHONGE NGANGA
2. LAURA WAITHERA
3. ALICE MUMBI........................................APPLICANTS
AND
KENYA COMMERCIAL FINANCE COMPANY LTD...................RESPONDENT
(Application for extension of time to file and serve Memorandum Appeal and Record of Appeal in an intended (Appeal from a Judgement, of the High Court of Kenya at Nairobi (Mr. Justice Ole Keiwua) dated 16th May, 1997 In H.C.C.C. No. 1041 of 1996)
R U L I N G
I have before me an application for extension of time to file a fresh notice of appeal and a record of appeal out of time. The application is made under rule 4 of the Rules of this ICto uirst .not in issue that I have, as a single judge of this court, jurisdiction to extend such time, the original appeal filed by the applicant having been struck out.
Civil appeal No. 236 of 1997 was struck out on 2nd day of December, 1997 as the record of that appeal was served on the respondent some ten days out of time. There was a further problem although not alluded to, that is that the decree appealed against had the word "decree" missing therefrom.
The appeal, as I have said, was struck out on 2nd day of December, 1997. This application was filed on 8th December, 1997. There has therefore been no undue delay in filing this application.
The real issue taken by Mr. Ougo for the respondent is that the applicant's advocates have not adequately explained the reason for the ten day delay in serving the record of appeal, in Civil Appeal No. 236 of 1997. He said it was not enough to say, merely, that it was an oversight. But in my view an oversight is an oversight. It cannot be further explained. It does happen that Counsel do forget that service of record of appeal must be effected within seven days of filing of the appeal. It can happen to the best of us.Should the litigant suffer for Counsel's such oversight when the delay was not inordinate. My answer to that is - no. I am of the view that if time can be extended, without much prejudice to the other side, it ought to be extended so as not to shut out a litigant from ventilating his grievances in the highest court in this country. It is a right - that of appeal - givReunl eb y 4s taotfu te.the Rules of this Court gives me wide discretion to extend time, subject only to requirements of justice to both sides. I do not think the respondent would be prejudiced, save for costs, if I grant the application.
The application is granted. The applicants will file their notice of appeal within seven days from today and their record of appeal within thirty days thereafter. The respondent will have costs of this application which, to save time, I assess at Kshs. 6000/=
. The payment of these costs must be made within the next thirty days failing which execution may issue.
Dated and delivered at Nairobi this 19th days of March, 1998.
A. B. SHAH ...........................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR