[2002] KECA 151 (KLR)
The court found that since the applicant's earlier notice of appeal and Civil Appeal No. 120 of 2001 were still pending and had not been struck out, it was not possible to grant leave to file a fresh notice of appeal and record of appeal. The existence of the pending appeal and notice precluded the grant of the...
Source-derived case information.
- Citation
- [2002] KECA 151 (KLR)
- Parties
- Applicant: M’Magiri M’Muthari; Respondent: Gideon Kimathi Nguthari
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? nai. of 2002
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Notice of Appeal, Record of Appeal, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Magiri M’Muthari
Applicant
Gideon Kimathi Nguthari
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant is entitled to an extension of time to file a fresh notice of appeal and record of appeal.
- 2 Whether the existence of a pending appeal and notice of appeal precludes the grant of leave to file a fresh notice and record of appeal.
Ratio Decidendi
The court found that since the applicant's earlier notice of appeal and Civil Appeal No. 120 of 2001 were still pending and had not been struck out, it was not possible to grant leave to file a fresh notice of appeal and record of appeal. The existence of the pending appeal and notice precluded the grant of the orders sought, as parallel or duplicative appeals are not permissible under the procedural rules. The application was therefore unmeritorious and dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file a fresh notice of appeal and record of appeal is dismissed with costs.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NYERI CORAM: BOSIRE, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 135 OF 2002 (70/2002)
BETWEEN
M’MAGIRI M’MUTHARI………….………………………………….APPLICANT AND GIDEON KIMATHI NGUTHARI………………………………….RESPONDENT
(An application for extension of time to file notice of appeal and record of appeal out of time against the ruling & Order of the High Court of Kenya at Meru (Omwitsa, C.A.) dated 18th August, 1999 in H.C.C.C. NO. 100 OF 1997) ***************** R U L I N G
This is an application under Rule 4 of the Court of Appeal Rules for an Order extending the time within which to file a fresh notice of appeal and a record of appeal. In the course of hearing the application it has emerged that the applicant’s earlier appeal to wit Civil Ap peal No. 120 of 2001 is still pending. Although this Court, in an application for stay of execution, to witCivil Application No. Nai.441 of 2001 , ruled that it lacked the jurisdiction to hear that application as it was made on the basis of an invalid notice of appeal that notice of appeal is still on record and has not been struck out. Likewise as I stated earlier, Civil Appeal No. 120 of 2001, aforesaid, which was filed pursuant to that notice of appeal is also still pending. In the result, I cannot possibly grant the applicant leave to file a fresh notice of appeal and record of appeal.
Accordingly, this application in unmeritorious, and it is dismissed with costs.
Dated and delivered at Nyeri this 30 th day of October, 2002.
S.E.O. BOSIRE ………………………. JUDGE OF APPEAL
I certify that this is a true copy of the original .
DEPUTY REGISTRAR