[2008] KEHC 2429 (KLR)
The court found that the initial extract of the order made on 10th September, 2007 did not contain the condition requiring the record of appeal to be filed within 7 days. The amended order, which included this condition, was only issued on 28th February, 2008. This sequence of events created confusion regarding the...
Source-derived case information.
- Citation
- [2008] KEHC 2429 (KLR)
- Parties
- Appellant: Parvinder Singh Saund; Respondent: Johnstone Lasaro Mwanzia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 341 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Extension of Time to File Record of Appeal
- Outcome
- application allowed
- Judges
- GG Okwengu
- Legal Topics
- Extension of Time, Appeals Process, Record of Appeal, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Parvinder Singh Saund
Appellant
Johnstone Lasaro Mwanzia
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file the record of appeal out of time.
- 2 Whether the applicant failed to comply with the condition to file the record of appeal within 7 days due to confusion regarding the court order.
Ratio Decidendi
The court found that the initial extract of the order made on 10th September, 2007 did not contain the condition requiring the record of appeal to be filed within 7 days. The amended order, which included this condition, was only issued on 28th February, 2008. This sequence of events created confusion regarding the filing deadline. In light of this confusion and in the interest of justice, the court exercised its discretion to extend the time for filing the record of appeal, finding it fair to allow the applicant an opportunity to comply with the procedural requirement.
Court Disposition
application allowed
Orders
- Time for filing the record of appeal is extended.
- The record of appeal must be filed within 7 days from the date of this ruling.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT
NAIROBI MILIMANI COMMERCIAL COURTS
Civil Appeal 341 of 2007
PARVINDER SINGH SAUND……………….….APPELLANT
VERSUS
JOHNSTONE LASARO MWANZIA…...…….RESPONDENT
R U L I N G
Parvinder Singh Saund, has come to this court under Order XLIX Rule 5 of the Civil Procedure Rule, and Section 3A of the Civil Procedure Act, seeking to have time extended for it to file the record of appeal out of time. The applicant was granted leave to file the appeal out of time in H.C.Misc. App. No.400 of 2006. Apparently the applicant was also ordered to file the record of appeal within 7 days. The applicant’s advocate explains that he did not hear or note down the part of the order relating to the filing of the record of appeal. Therefore, although the memorandum of appeal was filed within time, no record of appeal has been filed to date.
The respondent objects to this application. A replying affidavit has been sworn by the respondent’s advocate who reiterates that the order granting leave had a condition that the record of appeal be filed within 7 days. The respondent maintains that it extracted a copy of the order and served the applicant’s advocate. The respondent therefore maintains that the applicant has not exhibited any seriousness in pursuing the appeal and is simply wasting the court’s time.
Having considered this application, I do find that the initial extract of the order made on 10th September, 2007 did not have the condition for the filing of the record of appeal within 7 days. I note that there was an amended order extracted and issued on the 28th of February, 2008 wherein the condition for filing the record of appeal was added. It is clear that there was some confusion regarding that condition and in the circumstances it is only fair that this court exercises its discretion in the applicant’s favour. Accordingly, I do allow this application and extend time for filing the record of appeal. I order that the record of appeal be filed within 7 days from the date hereof.
Dated and delivered this 20th day of May, 2008
H. M. OKWENGU
JUDGE