[2000] KECA 163 (KLR)
The court found that, although there was a significant delay in filing the notice of appeal, the circumstances—including the parties' mutual consent to a stay of execution and arrangements regarding the decretal sum—indicated that the delay was not initially noticed or acted upon by either party. The court accepted...
Source-derived case information.
- Citation
- [2000] KECA 163 (KLR)
- Parties
- Applicant: Oserian Development Co Ltd; Respondent: Norah Muhonja Mwavali
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 55 of ??
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- Application for extension of time granted.
- Legal Topics
- Extension of Time, Appeals Process, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oserian Development Co Ltd
Applicant
Norah Muhonja Mwavali
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file the notice and record of appeal out of time.
- 2 Whether the delay in filing the notice of appeal was excusable under the circumstances.
Ratio Decidendi
The court found that, although there was a significant delay in filing the notice of appeal, the circumstances—including the parties' mutual consent to a stay of execution and arrangements regarding the decretal sum—indicated that the delay was not initially noticed or acted upon by either party. The court accepted the applicant's explanation that the oversight was only discovered during the preparation of the record of appeal. Weighing the interests of justice and the absence of demonstrated prejudice to the respondent, the court exercised its discretion to grant the extension of time sought, subject to payment of costs to the respondent.
Court Disposition
Application for extension of time granted.
Orders
- Applicant granted 7 days from the date of ruling to file the notice of appeal.
- Applicant granted 30 days thereafter to file the record of appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
CORAM: AKIWUMI, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI 55 OF 2000
BETWEEN
OSERIAN DEVELOPMENT CO LTD ............................ APPLICANT
AND
NORAH MUHONJA MWAVALI ................................. RESPONDENT
(An application for extension of time to file and serve notice and record of appeal out of time from the judgment & decree of the High Court of Kenya at Kisumu (Wambilyangah J) dated 23rd June, 1999 in H.C.C.C. NO. 253 OF 1996) *******************
R U L I N G
The present application is to extend time for the filing of the notice of appeal and record of appeal. The decision intended to be appealed against was delivered on 23. 6.99. Advocates for the applicant, the intended appellant, informed it of the decision by a letter of 27. 6.99 without stating the date when the judgment was given. The intended appellant's instructions to its advocates to appeal was received on 17. 7.99 when the time for the filing of the notice of appeal had elapsed. It was pointed out by counsel for the respondent, that it was not till some 8 months thereafter, that is on 28. 2.2000, that the present application was filed and that the respondent must not be denied the fruits of her judgment. But certain steps have been taken which give a different complexion to things. Some 3 months after judgment was given, the respondent successfully, by consent of the parties, obtained stay of execution of the judgment which also provided for the payment of 1/3 of the decretal sum to the respondent and 2/3 of the decretal sum to be deposited in an interest bearing account in the joint names of the Advocates of the parties. It does not seem then also, that the delay in filing the notice of appeal had been noticed by either Advocates. This tends to support the submission by counsel for the applicant from the bar, that the discovery that the notice of appeal had been filed out of time was only made in December 1999, when following the grant of stay of execution, the record of appeal was being prepared.
Having regard to all that I have hereinbefore stated, I would, being of the view that it is just having regard to all the surrounding circumstances to do so, grant the application by extending to the applicant 7 days from today within which to file the notice of appeal and 30 days thereafter to file the record of appeal. The costs of this application assessed at 5,000/= to be paid to the respondent within 14 days from today, otherwise execution to issue.
Dated and delivered at Kisumu this 24th day of March, 2000.
A. M. AKIWUMI ---------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR