[2024] KECA 1769 (KLR)
The court held that the application for extension of time to file the record of appeal could not be entertained because there was no valid notice of appeal on record. The rules require that a valid notice of appeal must exist before an extension of time to file the record of appeal can be granted. Since the notice...
Source-derived case information.
- Citation
- [2024] KECA 1769 (KLR)
- Parties
- Applicant: Gatuma Mukiri Njuguna; Respondent: Serah Wanjiru Mukiri
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application E214 of 2023
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time
- Outcome
- application dismissed
- Judges
- W Karanja
- Legal Topics
- Extension of Time, Notice of Appeal, Record of Appeal, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gatuma Mukiri Njuguna
Applicant
Serah Wanjiru Mukiri
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the applicant is entitled to extension of time to file and serve a record of appeal out of time.
- 2 Whether a valid notice of appeal exists on record to support the application for extension of time.
Ratio Decidendi
The court held that the application for extension of time to file the record of appeal could not be entertained because there was no valid notice of appeal on record. The rules require that a valid notice of appeal must exist before an extension of time to file the record of appeal can be granted. Since the notice of appeal was filed three years after the judgment and not within the prescribed time, the application was fundamentally defective and devoid of merit. The absence of a valid notice of appeal rendered the application incompetent, and therefore, it was dismissed.
Court Disposition
application dismissed
Orders
- The application for extension of time to file and serve the record of appeal out of time is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
Njuguna v Mukiri (Civil Application E214 of 2023) [2024] KECA 1769 (KLR) (6 December 2024) (Ruling)
Neutral citation: [2024] KECA 1769 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Application E214 of 2023
W Karanja, JA
December 6, 2024
Between
Gatuma Mukiri Njuguna
Applicant
and
Serah Wanjiru Mukiri
Respondent
Ruling
(Application brought under section 1A, 1B, 3A, 63(e), and Order 51 Rule 1, Rule 4, Rule 8 and Rule 10 of the Civil Procedure Rules and Rule 74 of the Court of Appeal Rules.) 1. The notice of motion before me dated 26th April 2023 seeks extension of time within which to file and serve a record of appeal out of time against the judgment of Musyoka, J. delivered in Succession Cause No. 3339 of 2014 on 10th February 2020.
2. According to the learned counsel for the applicant Mr. Nelson Osiemo, he prepared a notice of appeal the same day and lodged it at the registry but it was neither acknowledged nor did they get back the stamped copy, duly signed by the Deputy Registrar of the court.
3. The notice of appeal we have on record is court stamped as received on 19th April 2023. Clearly, the notice of appeal was filed 3 years after delivery of the judgment the applicant seeks to challenge on appeal.
4. His application seeks extension of time to file the record of appeal out of time but there is no valid notice of appeal on record which can carry the record of appeal. The rules pertaining to extension of time in regard to the notice of appeal and to the record of appeal are different. An application for extension of time to file the record of appeal out of time presupposes that there is a valid notice of appeal on record. As there is no such notice of appeal, an application to extend time within which to file the record of appeal does not lie.
5. Accordingly, I find this application devoid of merit and dismiss it accordingly with no order as to costs.
DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF DECEMBER, 2024. W. KARANJAJUDGE OF APPEALI certify that this is a the true copy of the original.SignedDEPUTY REGISTRAR