[2005] KECA 246 (KLR)
The court found that the applicants failed to provide a satisfactory explanation for the inordinate delay in lodging the Notice of Appeal. The judge emphasized that the filing of a Notice of Appeal is a simple and routine matter that does not require extensive instructions from the client, and a diligent advocate...
Source-derived case information.
- Citation
- [2005] KECA 246 (KLR)
- Parties
- Applicant: Njoka Muriu; Applicant: Susan Wangechi Njoka; Respondent: Evan Githinji Muriu; Respondent: Eston Kabui Evan
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 356 of 2003
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Notice of Appeal, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njoka Muriu
Applicant
Susan Wangechi Njoka
Applicant
Evan Githinji Muriu
Respondent
Eston Kabui Evan
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicants have provided sufficient explanation for the delay in lodging the Notice of Appeal.
- 2 Whether the court should exercise its discretion to extend time for filing the Notice and Record of Appeal.
Ratio Decidendi
The court found that the applicants failed to provide a satisfactory explanation for the inordinate delay in lodging the Notice of Appeal. The judge emphasized that the filing of a Notice of Appeal is a simple and routine matter that does not require extensive instructions from the client, and a diligent advocate would have lodged it promptly to safeguard the client's interests. The applicants' indolence and lack of diligence amounted to laches, and as such, the court declined to exercise its discretion to extend time. The application was therefore dismissed with costs to the respondents.
Court Disposition
application dismissed
Orders
- The application for extension of time is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NYERI CORAM: TUNOI, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 356 OF 2003 (NYR.19/2003)
BETWEEN
1. NJOKA MURIU 2. SUSAN WANGECHI NJOKA……………………..………………..APPLICANTS AND 1. EVAN GITHINJI MURIU 2. ESTON KABUI EVAN…………………....……………....……….RESPONDENTS
(Application for extension of time to file Notice and Record of Appeal out of time form a judgment of the High Court of Kenya at Nyeri (Juma, J) dated 18. 9.03
in H.C.C.C. NO. 182 OF 1984) **************
R U L I N G
This application is brought under Rule 4 of the Rules of this Court. It seeks an extension of time to file and serve a Notice of Appeal, Memorandum of Appeal and Record of Appeal.
Judgment the subject matter of the intended appeal was delivered on 18th September, 2003. However, by the time this motion was lodged, and indeed; to date no Notice of Appeal has been lodged.
A Notice of Appeal is a simple one page formal piece of paper whose lodgment is normally a matter of course. The filing of it does not mean that an appeal will eventually be filed. A careful advocate would lodge a Notice of Appeal to safeguard his client’s interests. In most cases instructions need not be obtained from the client before lodging it.
In my view, there has been an inordinate delay in lodging it and the same has not been explained to my satisfaction. Indeed, the applicant has been guilty of laches.
Even though the matter in issue is family land, the indolent manner by the applicant denies him my discretion.
I think that this is not a fit and proper case for the exercise of my discretion which I decline to exercise.
Accordingly, I hereby dismiss the application with costs to the respondent.
DATED and DELIVERED at NYERI this 12th day of May, 2005.
P.K. TUNOI
………………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR