[1997] KECA 155 (KLR)
The court held that the applicant's failure to lodge a notice of appeal within the prescribed time was not excusable, as the reason advanced—that copies of proceedings and the ruling were awaited—was untenable. The law does not require such documents for the filing of a notice of appeal, which is a simple...
Source-derived case information.
- Citation
- [1997] KECA 155 (KLR)
- Parties
- Applicant: Njenga Njoroge; Respondent: Joseph Nganga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 410 of 1996
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time and Stay of Execution
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Stay of Execution, Notice of Appeal Requirements, Judicial Discretion, Advocate Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njenga Njoroge
Applicant
Joseph Nganga
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time and Stay of Execution
Legal Issues
- 1 Whether the court should extend time for lodging a notice of appeal after the prescribed period has lapsed.
- 2 Whether the court has jurisdiction to grant a stay of execution in the absence of a valid notice of appeal.
- 3 Whether the applicant's explanation for delay constitutes sufficient cause for extension of time.
Ratio Decidendi
The court held that the applicant's failure to lodge a notice of appeal within the prescribed time was not excusable, as the reason advanced—that copies of proceedings and the ruling were awaited—was untenable. The law does not require such documents for the filing of a notice of appeal, which is a simple declaration of intent to appeal. The applicant's advocate's negligence did not amount to sufficient cause to warrant the exercise of the court's discretion to extend time. Furthermore, the absence of a valid notice of appeal deprived the court of jurisdiction to grant a stay of execution. Consequently, both prayers for extension of time and stay of execution were dismissed.
Court Disposition
application dismissed with costs
Orders
- Prayer for stay of execution is struck out for want of jurisdiction.
- Application for extension of time to file notice of appeal is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAKURU (CORAM: BOSIRE, AG J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI 410 OF 1996
BETWEEN
NJENGA NJOROGE ........................................ APPLICANT
AND
JOSEPH NGANGA .......................................... RESPONDENT
(In the matter of an intended appeal from the judgment of the High Court of Kenya at Nakuru (Lady Justice Ondeyo) dated 26th March, 1996 in H.C.C.C. NO. 731 OF
R U L I N G
The applicant was the unsuccessful party before the superior court in its civil suit, Nakuru High Court Civil Case No. 731 of 1993. The decision in that case was delivered on 26th March, 1996, by Lady Justice S.C. Ondeyo. The applicant was dissatisfied and wished to appeal against that decision.
However, his advocate, Lawrence Mwangi, did not file a notice of appeal within the time prescribed by rule 74(2) of the Rules of this court. The applicant now moves this court for orders, firstly, extending the time within which to lodge a notice of appeal and, secondly, for stay of execution of the decree in the suit, above, pending appeal.
The court's jurisdiction to grant a stay of execution is donated by rule 5(2)(b) of the Rules of the Court. That jurisdiction is exercisable when an intending appellant has lodged a valid Notice of Appeal in terms of rule 74, above. There is no valid Notice of Appeal filed in terms.
Consequently this court lacks the jurisdiction to grant that prayer,which is accordingly struck out.
As for the first prayer, the jurisdiction of the Court to extend time within which to file a Notice of Appeal stems from rule 4 of the Court of Appeal Rules. The jurisdiction is judicial and wide. An applicant is required to show sufficient cause for his failure to take the essential step before the court can exercise that jurisdiction in his favour.
The applicant's case is that his erstwhile advocate, Lawrence Mwangi, failed to file a Notice of Appeal in time because he was still waiting to be supplied with copies of proceedings and ruling of the superior court, which according to him, were only supplied long after the period for lodging a Notice of Appeal had expired.
The evidence before me clearly shows that copies of proceedings and ruling were applied for on Ist April, 1996. However, such documents are not essential in lodging a Notice of Appeal. A notice of Appeal is only a formal document declaring that a party intends to appeal against either a decree or order of the superior court. An intending appellant is not obliged to lodge it with any other documents.
Consequently, the reason given by the applicant to explain his failure to lodge a Notice of Appeal on time is untenable. The authorities cited by Mr. Kiplenge for the applicant have no relevance to this matter because there is no averment that Mr. Lawrence Mwangi was mistaken as to the requirements for the lodging of a Notice of Appeal. What appears to be the case as was rightly pointed out by Mrs. Wamithi for the respondent, is that Mr. Mwangi was negligent.
The applicant also depones in his affidavit in support of his application that the dispute between him and the respondent concerns land, and that he has good grounds for challenging both the superior court's decision and the arbitration award on which it was based. That may well be so.
However, the applicant having not placed material before me to enable me exercise my judicial discretion in his favour, I have no basis for doing so. His application, therefore, fails and is ordered dismissed with costs.
Dated and delivered at Nakuru this 20th day of February, 1997.
S.E.O. BOSIRE
.......................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR