[1999] KECA 44 (KLR)
The court found that the applicant had provided a credible and unchallenged explanation for the delay in filing the notice of appeal, namely the failure of counsel's court clerk. The court rejected the respondent's argument that negligence of counsel should preclude the exercise of discretion, holding that the...
Source-derived case information.
- Citation
- [1999] KECA 44 (KLR)
- Parties
- Applicant: National Cereals & Produce Board; Respondent: Albert Ongaro
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 214 of 1998
- Procedural Posture
- Civil 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, Procedural Default
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Cereals & Produce Board
Applicant
Albert Ongaro
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided a sufficient explanation for the delay in filing the notice of appeal out of time.
- 2 Whether negligence of counsel's clerk constitutes a valid ground for extension of time.
Ratio Decidendi
The court found that the applicant had provided a credible and unchallenged explanation for the delay in filing the notice of appeal, namely the failure of counsel's court clerk. The court rejected the respondent's argument that negligence of counsel should preclude the exercise of discretion, holding that the explanation was sufficient and not seriously contested. Accordingly, the court exercised its discretion to deem the notice of appeal as having been filed within time and granted a further period for filing the record of appeal.
Court Disposition
application allowed
Orders
- The notice of appeal filed on 6th June, 1997 is deemed to have been filed within time.
- The record of appeal must be filed within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: OMOLO J.A (IN CHAMBERS) CIVIL APPLICATION NO.NAI. 214 OF 1998 BETWEEN NATIONAL CEREALS & PRODUCEBOARD.......................APPLICANT AND ALBERTONGARO..........................................RESPONDENT
R U L I N G
I have read the notice of motion and the affidavit in support thereof. The applicant has fully explained the circumstances which led to the notice of appeal being filed out of time. I do not understand Mrs Nyakundi to be saying that the explanation given is false. All she appears to say is that even if the explanation were true it would only show negligence on the part of counsel and that the applicant has remedy against counsel for such negligence I do not think that is a proper basis upon which I can exercise my discretion. I accept the explanation of Mr. Mugo that his court clerk failed him and that as soon as he discovered this he acted immediately and filed the notice of appeal. The failure to file the record of appeal in time is fully explained and the explanation is not really challenged. Accordingly I allow this motion and make the following orders:-
1. The notice of appeal filed on the 6th June, 1997 be and is hereby deemed to have been filed within time. 2. The record of appeal must be filed within 14 (fourteen) days from to-day's date.
3. The costs of this motion shall be in the intended appeal
Dated and delivered at Nairobi this 14th day of January,
1999.
R.S.C. OMOLO
......................
JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR