[2004] KECA 32 (KLR)
The court found that the applicants had provided a reasonable explanation for the delay in filing the notice and record of appeal, particularly noting that the delay was occasioned by the late approval of the decree and that the applicants had demonstrated their intention to appeal by filing a notice of appeal...
Source-derived case information.
- Citation
- [2004] KECA 32 (KLR)
- Parties
- Applicant: Patrick Mwangi Wanderi; Applicant: Milka Wairimu Wanderi; Respondent: Grace Muthoni Muhiu; Respondent: Joram Muhiu Ngunje; Respondent: Lucy Wanjiku Muhiu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 146 of 2004
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File and Serve Notice and Record of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals Process, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Mwangi Wanderi
Applicant
Milka Wairimu Wanderi
Applicant
Grace Muthoni Muhiu
Respondent
Joram Muhiu Ngunje
Respondent
Lucy Wanjiku Muhiu
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File and Serve Notice and Record of Appeal
Legal Issues
- 1 Whether the applicants have provided sufficient explanation for the delay in filing and serving the notice and record of appeal.
- 2 Whether the court should exercise its discretion under rule 4 to extend time for filing and serving the notice and record of appeal.
Ratio Decidendi
The court found that the applicants had provided a reasonable explanation for the delay in filing the notice and record of appeal, particularly noting that the delay was occasioned by the late approval of the decree and that the applicants had demonstrated their intention to appeal by filing a notice of appeal within the prescribed time. The court exercised its discretion under rule 4 of the Court of Appeal Rules, guided by the principles set out in Leo Sila Mutiso v. Rose Hellen Wangari Mwangi, and deemed the notice of appeal already filed as validly filed and properly on record. The applicants were granted an extension of time to lodge the record of appeal within 30 days of the ruling.
Court Disposition
application allowed
Orders
- The notice of appeal already filed is deemed to have been validly filed and properly on record.
- The applicants are granted extension of time to lodge the record of appeal within 30 days of this ruling.
Full Case Text
Judgment text and source record
22 paragraphs
REPULIC OF KENYA
IN THE COURT OF APPEAL AT NYERI (CORAM: O’KUBASU, J.A (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 146 OF 2004 (NYR 9/2004)
BETWEEN
1. PATRICK MWANGI WANDERI ) 2. MILKA WAIRIMU WANDERI ) …………………………. APPLICANTS AND 1. GRACE MUTHONI MUHIU ) 2. JORAM MUHIU NGUNJE ) …………………….. RESPONDENTS 3. LUCY WANJIKU MUHIU )
(Application for extension of time to file and serve notice and record of appeal out of time in an intended appeal from the Judgment and decree of the High Court of Kenya at Nyeri (Mitey, J) dated 8th October, 2002
in H.C.C.C No. 117 of 2001) ********************
R U L I N G
I have before me an application under rule 4 of this Court’s Rules in which the applicants seek the following orders:-
“1. THAT time within which to file and serve Notice of Appeal and Record of Appeal be extended.
2. THAT costs of and incidental to this application abide the result of the said appeal.”
The application is supported by an affidavit of Mr. A.J. Kariuki, counsel for the applicants. In that affidavit, Mr. Kariuki gives a detailed explanation as to what led to the delay. Part of the explanation was that the decree was not approved in good time and an application for extension of time was filed which was later withdrawn.It was pointed out that the dispute relates to family land in which the parties are members of that same family.
Mr. Njuguna, for the 1st respondent, opposed the application on the ground that there was inordinate delay which had not been explained.
Mr. Nderi, for the 2nd respondent, opposed the application relying on a replying affidavit. He complained that there was no sufficient material placed before the Court to warrant the exercise of this Court’s discretion in favour of the applicants.
The 3rd respondent had nothing to say.
An application under rule 4 of the Rules seeks this Court’s exercise of discretion. In Leo Sila Mutiso v. Rose Hellen Wangari Mwangi –Civil Application No. Nai. 251 of 1997 (unreported) this Court set out the principles that would guide it in such applications. I have considered what Mr. Kariuki has said in his submission and the objections raised by the respondents. This is a dispute relating to land.The parties are members of the same family. The applicants indicated a desire to appeal when a notice of appeal was filed within the prescribed time. There was a delay which has been explained. Indeed, there is a valid notice of appeal and what is now to be dealt with is the extension of time in which to file record of appeal.
In view of the foregoing, the notice of appeal already filed is deemed to have been validly filed and properly on record and the applicants are now granted extension of time in which to lodge record of appeal. The record of appeal is to be lodged within 30 days of this ruling. Costs shall be in the intended appeal.
Dated and delivered at Nyeri this 5th day of November, 2004.
E.O. O’KUBASU
...........................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR