[2000] KECA 62 (KLR)
The court held that the applicants acted promptly by bringing the application for extension of time within 15 days of their appeal being struck out, which is not an inordinate delay. The absence of opposition from the majority of respondents, and the lack of appearance by the remaining respondents despite proper...
Source-derived case information.
- Citation
- [2000] KECA 62 (KLR)
- Parties
- Applicant: Father Makarios Ngugi; Applicant: Father Paul Njoroge; Applicant: Geoffrey Muoria; Respondent: The Registrar of Societies; Respondent: John G. Kimani; Respondent: Moses N. Gichuhi; Respondent: Zadock O. Oloo; Respondent: Fred Kago; Respondent: George Onyango; Respondent: Robert Kaburu; Respondent: Niphon N. K. Magu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 327 of 2000
- Procedural Posture
- Civil Application / Application for Extension of Time to File Appeal
- Outcome
- Application allowed. Extension of time granted.
- Legal Topics
- Extension of Time, Appeal Struck Out, Court of Appeal Rules, Reinstatement of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Father Makarios Ngugi
Applicant
Father Paul Njoroge
Applicant
Geoffrey Muoria
Applicant
The Registrar of Societies
Respondent
John G. Kimani
Respondent
Moses N. Gichuhi
Respondent
Zadock O. Oloo
Respondent
Fred Kago
Respondent
George Onyango
Respondent
Robert Kaburu
Respondent
Niphon N. K. Magu
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicants are entitled to an extension of time to file and serve a fresh notice of appeal and record of appeal after their initial appeal was struck out for incompetence.
- 2 Whether the application for extension of time was made promptly and without undue delay.
Ratio Decidendi
The court held that the applicants acted promptly by bringing the application for extension of time within 15 days of their appeal being struck out, which is not an inordinate delay. The absence of opposition from the majority of respondents, and the lack of appearance by the remaining respondents despite proper service, further supported the grant of the application. The court exercised its discretion under Rule 4 of the Court of Appeal Rules to extend the time for filing and serving a fresh notice of appeal and record of appeal, finding no prejudice to the respondents and that the interests of justice warranted the extension.
Court Disposition
Application allowed. Extension of time granted.
Orders
- Applicants granted 10 days to file and serve a fresh notice of appeal.
- Applicants granted a further 30 days to file and serve a record of appeal.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE COURT OF APPEAL AT NAIROBI
CORAM: BOSIRE, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI 327 OF 2000 (160/2000 UR)
BETWEEN
FATHER MAKARIOS NGUGI
FATHER PAUL NJOROGE
GEOFFREY MUORIA ...................................................................................APPLICANTS
AND
THE REGISTRAR OF SOCIETIES
JOHN G. KIMANI
MOSES N. GICHUHI
ZADOCK O. OLOO
FRED KAGO
GEORGE ONYANGO
ROBERT KABURU.
NIPHON N. K. MAGU ...............................................................................RESPONDENTS
(Appeal from a ruling of the High Court of Kenya at Nairobi (Githinji J) dated 9th February, 1999 in
H.C.MISC.C. NO. 537 OF 1998)
********************
R U L I N G
The applicants'Civil Appeal No. 63 of 1999 was struck out on 30th October, 2000 for incompetence. Thereafter, on 15th November, 2000, the applicants brought this application wherein they seek an order under rule 4 of the Court of Appeal Rules, extending the time within which to file and serve a fresh notice of appeal, and thereafter a memorandum and record of appeal.
It is trite law that an appellant whose appeal has been struck for incompetence, may restart the appellate process provided he seeks the leave of the Court to do so promptly.
The applicants brought this application about 15 days after their appeal was struck out. A period of 15 days is not inordinate and I would be minded in the circumstances to extend the time as prayed. Moreover, Miss Mbuthia for the 2nd to 7th respondents does not oppose the application quite properly so in my view.
As for the remaining two respondents, they were duly served with the application and too, the hearing notice for today's hearing but have not appeared. The rebuttable presumption which arises is that they do not wish to oppose this application.
In the result, I grant the applicants an extension of 10 days within which to file and serve a fresh notice of appeal, and a further 30 days within which to file and serve a record of appeal. The 2nd to 7th respondents shall have the costs of the application assessed at KShs.7,000/-, to be paid within ten days and in default, execution to issue.
Dated and delivered at Nairobi this 13th day of December, 2000.
S. E. O. BOSIRE
---------------
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR