[1997] KECA 147 (KLR)
The court declined to exercise its discretion to extend time for the applicants to file and serve a notice and record of appeal because the applicants had previously been granted an opportunity to regularise their appeal but failed to do so. Their repeated omission to include a certified copy of the order appealed...
Source-derived case information.
- Citation
- [1997] KECA 147 (KLR)
- Parties
- Appellant: Mutia Mithamo; Appellant: Annah Murugi Gathukumi; Appellant: Joseph Muriuki M'Ithamo; Respondent: Wilson Kinya Mithamo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 155 of 1997
- 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, Appeals Process, Judicial Discretion
- 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
Mutia Mithamo
Appellant
Annah Murugi Gathukumi
Appellant
Joseph Muriuki M'Ithamo
Appellant
Wilson Kinya Mithamo
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the court should exercise its discretion under Rule 4 to extend time for filing and serving a notice and record of appeal after previous appeals were struck out for procedural defects.
- 2 Whether repeated failure to comply with procedural requirements justifies denial of further extension of time.
Ratio Decidendi
The court declined to exercise its discretion to extend time for the applicants to file and serve a notice and record of appeal because the applicants had previously been granted an opportunity to regularise their appeal but failed to do so. Their repeated omission to include a certified copy of the order appealed against, coupled with their lack of candour in not disclosing the earlier struck out appeal, demonstrated a lack of seriousness and candour in their pursuit of justice. The court found that granting another extension would amount to an abuse of the court process and thus dismissed the application with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time is dismissed.
- Costs to the respondent assessed at Kshs.2,000.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPLICATION NO. NAI.155 OF 1997 (UR. 63/97)
MUTIA MITHAMO
ANNAH MURUGI GATHUKUMI
JOSEPH MURIUKI M'ITHAMO ............................ APPELLANTS
AND
WILSON KINYA MITHAMO ............................... RESPONDENT
(An application for extension of time within which to file and serve notice of appeal and record of appeal from a ruling and order of the High Court of Kenya at Nyeri (Justice P.K. Tunoi) dated 22nd February 1993 IN H.C.C.C. NO.158 OF 1990 **************
RULING OF THE COURT
This is an application under Rule 4 of the Rules of this Court for extension of time within which to file and serve a Notice of Appeal and thereafter a record of appeal. The applicants were the unsuccessful parties in their application before the Superior Court at Nyeri (Tunoi J, as he then was) for and order vacating an arbitration award. They filed Civil Appeal No. 184 of 1993 which appeal was struck out on 25th October, 1995 because the record of appeal did not contain a certified copy of the order appealed against. It would appear to me that they later successfully applied to this court for extension of time within which to restart the appellate process because their subsequent appeal against the same order to wit Civil Appeal No.194 of 1996 was also struck out on the 15th May, 1997, because of their failure to include in the record of appeal a certified copy of the order appealed against.
In the present application the applicants pray that I exercise my judicial discretion under rule 4 of our Rules to extend time, once again, so that they may start,denovo, the appeal process. Miss Ndirangu for the respondent has opposed the application on the ground that the applicants are not serious in their quest for justice. She submitted that the applicants having been given a chance to regularise the mistake which made their first appeal to be struck out, but failed to do so, deserve no sympathy from this court. I agree. Although the discretion of this court under rule 4, above, is wide, it must be exercised judicially and on the basis of evidence and sound legal principles. This application is an abuse of the process of the court. The applicants did not disclose the fact that they had filed Civil Appeal No. 184 of 1993, and that the same had been struck out for the same reason as Civil Appeal No.194 of 1996.
Although in the case of Elizabeth Kamene Ndolo vs. George M. Ndolo Civil Appeal No. NAI 104 of 1995 (UR) this court held that where an appeal has been struck out for being incompetent as opposed to where it has been dismissed, there is nothing to stop the appellant asking the court to extend time under rule 4 to enable the filing of a fresh notice of appeal, where, as here, the appellant is shown not to be candid or serious in their quest for justice, the court should, in my view, be disinclined to exercise its discretion in favour of extension of time.
In the above circumstances and for the reasons I have given I decline to exercise my judicial discretion under rule 4 and dismiss the application with costs to the respondent assessed at Kshs.2,000/=.
Dated and delivered at Nairobi this 3rd day of July, 1997.
S.E.O. BOSIRE
.....................
AG. JUDGE OF APPEAL