[1997] KECA 124 (KLR)
The full court held that the single judge exercised his discretion correctly based on the material before him, as it was not satisfactorily shown that judgment had been entered in terms of the award. The attempt by the applicant to introduce additional evidence at the reference stage was rejected due to the express...
Source-derived case information.
- Citation
- [1997] KECA 124 (KLR)
- Parties
- Applicant: Kithaka Nthakanio; Respondent: Thathi Nthakanio
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 329 of 1995
- Procedural Posture
- Civil Application / Reference to Full Court Against Single Judge's Ruling on Extension of Time
- Outcome
- reference dismissed with costs to the respondent
- Legal Topics
- Extension of Time, Exercise of Judicial Discretion, Admission of Additional Evidence, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kithaka Nthakanio
Applicant
Thathi Nthakanio
Respondent
Procedural Posture
Civil Application / Reference to Full Court Against Single Judge's Ruling on Extension of Time
Legal Issues
- 1 Whether the single judge erred in exercising discretion to grant extension of time for lodging notice and record of appeal.
- 2 Whether the single judge failed to consider that judgment had already been entered, making the appeal futile.
- 3 Whether additional evidence could be introduced at the full court hearing.
Ratio Decidendi
The full court held that the single judge exercised his discretion correctly based on the material before him, as it was not satisfactorily shown that judgment had been entered in terms of the award. The attempt by the applicant to introduce additional evidence at the reference stage was rejected due to the express prohibition in rule 54(2) of the Court of Appeal Rules. The court found no reason to interfere with the single judge's decision to grant the extension of time, as there was no demonstrated error in the exercise of discretion. The reference was therefore dismissed with costs to the respondent.
Court Disposition
reference dismissed with costs to the respondent
Orders
- The reference is dismissed.
- Costs to the respondent assessed at Shs.1,000/=
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI (CORAM: TUNOI, SHAH & PALL, JJ.A.) CIVIL APPLICATION NO. NAI. 329 OF 1995
BETWEEN
KITHAKA NTHAKANIO .................................. APPLICANT
AND
THATHI NTHAKANIO ................................... RESPONDENT
(Appeal from a Judgment and decree of the High Court of Kenya at Meru (Justice S.O. Oguk) dated 12th July, 1990 in H.C.C. APPEAL NO. 97 OF 1988) *********************
RULING OF THE COURT
This is a reference to full Court against the ruling of the learned single Judge of this Court whereby he exercised his discretion under rule 4 of the Rules of this Court in favour of the respondent and granted him extension of time for lodging the Notice of Appeal and the record of appeal. Mr. Njage, counsel for the applicant, asks us in this reference under rule 54(1) (b) to vary, discharge or reverse the decision of the single judge on the ground that, he, in the exercise of his discretion failed to take into account a relevant matter which he ought to have taken into account. The matter allegedly omitted to be considered is that judgment was entered in terms of the award in July, 1990, and; therefore, it would be an exercise in futility and prejudicial to the applicant if the respondent was given an extension for time to perfect his appeal in view of the provisions of Order 45 rule 17(2) of the Civil Procedure Rules.
At the hearing of the application it was not shown to the satisfaction of the learned single judge that judgment had so been entered. In his ruling he observed:
"It is not clear whether or not after the applicant's appeal in the High Court at Meru was dismissed judgment was entered in terms of the award notwithstanding that the respondent proceeded as if that was so ......... The record of this application is deficient in this regard."
The applicant has tried to introduce additional evidence before us to show that judgment had been entered. But rule 54(2) of the Rules of this Court expressly says that no additional evidence shall be adduced at a full court hearing like the one before us.
On the material before him, the learned single judge arrived at a correct decision and we see no reason to think otherwise. This reference is accordingly dismissed with costs to the respondent assessed at Shs.1,000/=.
Dated and delivered at Nyeri this 28th day of October, 1997.
P.K. TUNOI
..................
JUDGE OF APPEAL
A.B. SHAH
..................
JUDGE OF APPEAL
G.S. PALL
.................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR