[2008] KEHC 3628 (KLR)
The court held that the admission of the appeal is a crucial procedural step, and the period for filing the record of appeal should be calculated from the date of admission, not from the date the reason of appeal was filed. The delay in filing was explained as being due to confusion by the advocates, and the court...
Source-derived case information.
- Citation
- [2008] KEHC 3628 (KLR)
- Parties
- Appellant: Nicasio Njue Kabuthi; Respondent: Beliliana Njura Njeru; Respondent: Edith Rwamba
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 39 of 2006
- Procedural Posture
- Civil Appeal / Application for Leave to File Record of Appeal Out of Time
- Outcome
- Application allowed.
- Legal Topics
- Extension of Time, Appeal Admission, Record of Appeal Filing, Procedural Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicasio Njue Kabuthi
Appellant
Beliliana Njura Njeru
Respondent
Edith Rwamba
Respondent
Procedural Posture
Civil Appeal / Application for Leave to File Record of Appeal Out of Time
Legal Issues
- 1 Whether leave should be granted to file the record of appeal out of time.
- 2 Whether the delay in filing the record of appeal was reasonable and excusable.
Ratio Decidendi
The court held that the admission of the appeal is a crucial procedural step, and the period for filing the record of appeal should be calculated from the date of admission, not from the date the reason of appeal was filed. The delay in filing was explained as being due to confusion by the advocates, and the court found the explanation reasonable. The court also noted that the respondent was not likely to be prejudiced by the extension, as they had already enjoyed the fruits of their judgment. Accordingly, the court exercised its discretion to allow the application for extension of time, granting the applicant seven days from the date of the ruling to file the record of appeal.
Court Disposition
Application allowed.
Orders
- Applicant to file the record of appeal within the next 7 days from the date of the ruling.
- Costs in the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Appeal 39 of 2006
NICASIO NJUE KABUTHI……………......…….……………..APPELLANT
VERSUS
BELILIANA NJURA NJERU………………………….1ST RESPONDENT
EDITH RWAMBA…………………….…………..…….2ND RESPONDENT
RULING
The application dated 23/8/2007 seeks orders for leave to file record of appeal out of time. On ground that the appeal was admitted on 20/6/2007 and court gave 21 days to file record of appeal. The delay in filing the record was occasioned by advocates confusion. The application is opposed on the ground that the appeal was not filed in time. I may point out that the record shows the reason of appeal was filed on 26/6/2006 but it was not admitted until 20/6/2007. Another ground is that there has been inordinate delay in pursuing this matter.
Upon consideration of the above it is clear the admission of appeal is crucial before a party can proceed further in his appeal. This step seem to have been omitted by court. Therefore the proceedings must start from 20/6/2007 when admission was ordered. From what the Respondent says he is not likely to be prejudiced by the extension of the time since he has enjoyed the fruits of his Judgment already. I accept the explanation given for delay as reasonable. I allow the application and order the Applicant to file the record within the next 7 days from today.
Costs in the appeal.
Dated this 18th January, 2008.
J. N. KHAMINWA
JUDGE
18/1/2008
Khaminwa – Judge
Njue – Clerk
Mr. Kathungu HB
Ms Wairimu HB
J. N. KHAMINWA
JUDGE