[2006] KECA 28 (KLR)
The court found that the applicant had reasonably explained the delay in filing the notice of appeal, attributing it to the inaction of his counsel rather than any fault of his own. The evidence showed that a proper verifying affidavit was filed within the time allowed by the High Court, and the subsequent late...
Source-derived case information.
- Citation
- [2006] KECA 28 (KLR)
- Parties
- Applicant: Mohammed Olunga Oduori; Respondent: Mumias Outgrowers Company (1998) Limited; Respondent: The Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 204 of 2006
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals Process, Verifying Affidavit, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Olunga Oduori
Applicant
Mumias Outgrowers Company (1998) Limited
Respondent
The Attorney General
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 court should exercise its discretion to extend time for filing and serving the notice and record of appeal.
Ratio Decidendi
The court found that the applicant had reasonably explained the delay in filing the notice of appeal, attributing it to the inaction of his counsel rather than any fault of his own. The evidence showed that a proper verifying affidavit was filed within the time allowed by the High Court, and the subsequent late filing was unexplained and not attributable to the applicant. The court also noted that the applicant brought the application for extension promptly upon discovering the lapse and that the intended appeal was arguable. The respondent's objection regarding missing pleadings was dismissed as irrelevant, given the plaint had been struck out and no defence or other pleadings could have...
Court Disposition
application allowed
Orders
- The applicant is granted an extension of 14 days from the date of the ruling to file and serve a notice of appeal.
- The applicant is granted a further 30 days to lodge and serve a record of appeal.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU
CIV APPLI 204 OF 2006
MOHAMMED OLUNGA ODUORI ..….………….........................……….. APPLICANT
AND
MUMIAS OUTGROWERS COMPANY (1998) LIMITED …...…… 1ST RESPONDENT
THE ATTORNEY GENERAL ……...............................……..……….. 2ND RESPONDENT
(Application for extension of time to file and serve Notice of Appeal and Record of Appeal out of time from the Ruling and Order of the High Court of Kenya at Kakamega
(Mr. Justice G.B.M. Kariuki) dated 18th May, 2006
in
H.C.C.C. NO. 93 OF 2001)
******************
R U L I N G
Mohammed Olunga Oduori, the applicant, has moved this Court under rule 4 of the Court of Appeal Rules (the Rules), for an order extending the time within which to file and serve a notice of appeal and a record of appeal. The application is opposed.
The applicant filed a plaint in the High Court, at Kakamega. A verifying affidavit to that plaint was found to be defective, but the Court upon application extended the time within which a proper verifying affidavit would be filed. He allowed the applicant 21 days to do so. The applicant was represented by legal counsel, Mr. Kasamani. The evidence before me shows that an affidavit was filed on 1st August, 2005, which was within the 21 days the applicant had been allowed. For some reason a copy of the same affidavit was again filed on 12th August, 2005, which was outside the time the court had granted the applicant. The applicant has deponed in his affidavit in support of the application before me that he does not understand why his counsel did that. He submitted before me that he suspects his counsel colluded with the respondents to defeat his case.
Be that as it may, on the basis of the late affidavit, the respondents successfully moved the superior court for an order striking out the applicant’s plaint on the ground that he had failed to comply with the court order allowing him 21 days to file a proper verifying affidavit to the plaint. The court allowed the application and struck out the plaint.
Being aggrieved by the order, the applicant instructed his counsel Mr. Kasamani, to lodge an appeal. Learned counsel did not do so although on several occasions he told the applicant he would do so. The time within which under the Rules the notice of appeal needed to be filed expired before the notice was filed. It was then that the applicant decided to bring this application in person.
Miss Lusinde, appeared for the respondents, at the hearing of this application. Although she conceded that the applicant had indeed filed an affidavit on 1st August, 2005, which was within time, she opposed this application arguing that the applicant had not placed sufficient material before this Court to entitle it to exercise its unfettered discretion in his favour. She had in mind the fact that the record of the application did not include copies of the plaint, the defence and other pleadings. With due respect to her, the plaint having been struck out, a copy thereof could not possibly have been made part of the record of the application. Besides, the stage had not reached for the plaint to be served upon the respondents. Consequently, no defence or other pleading had been filed or could have been filed.
The applicant has reasonably explained why he did not file a notice of appeal within time. There are matters on record which cannot be explained except by counsel who represented the applicant in the court below, and from outward appearances, the said counsel appears to have been deliberately uninterested in helping the applicant.
Besides, the applicant’s intended appeal appears to me to be arguable. He brought this application promptly.
In the result, I am inclined to grant the applicant the extension of time within which to file and serve a notice of appeal by 14 days from the date hereof, and the time for lodging and serving a record of appeal by a further 30 days. I make no order as to costs. I so order.
Dated and delivered at Kisumu this 23rd day of November, 2006.
S.E.O. BOSIRE
…………………
JUDGE OF APPEAL
I certify that this is atrue copy of the original.
DEPUTY REGISTRAR