[2002] KECA 128 (KLR)
The court held that while the applicant had made a series of procedural mistakes in attempting to lodge the appeal, these mistakes alone were not sufficient to deny him the right to appeal. The court found that there was no delay attributable to the applicant and that each procedural fault had already been penalised...
Source-derived case information.
- Citation
- [2002] KECA 128 (KLR)
- Parties
- Applicant: Peter Munjuga Gathuru; Respondent: Harun Osoro Nyamboki; Respondent: Estate Building Society
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 331 of 2001
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal and Appeal Out of Time
- Outcome
- Application allowed. Leave granted to file notice of appeal out of time.
- Legal Topics
- Extension of Time, Appeals Process, Procedural Defaults
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Munjuga Gathuru
Applicant
Harun Osoro Nyamboki
Respondent
Estate Building Society
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal and Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted extension of time to file a notice of appeal and appeal out of time.
- 2 Whether procedural mistakes by the applicant justify denial of the right to appeal.
Ratio Decidendi
The court held that while the applicant had made a series of procedural mistakes in attempting to lodge the appeal, these mistakes alone were not sufficient to deny him the right to appeal. The court found that there was no delay attributable to the applicant and that each procedural fault had already been penalised by costs. Emphasising that the maxim that litigation must come to an end should not override a litigant's right to be heard, the court exercised its discretion in favour of the applicant and granted the extension of time sought.
Court Disposition
Application allowed. Leave granted to file notice of appeal out of time.
Orders
- Applicant granted leave to file a notice of appeal out of time within seven days.
- Record of appeal to be lodged within 21 days thereafter.
Full Case Text
Judgment text and source record
16 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI CORAM: TUNOI, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 331 OF 2001
BETWEEN
PETER MUNJUGA GATHURU .............................. APPLICANT
AND
HARUN OSORO NYAMBOKI ....................1ST RESPONDENT
ESTATE BUILDING SOCIETY ...................2ND RESPONDENT
(Application for extension of time to file a notice of appeal and appeal out of time in an intended appeal from the judgment of the High Court of Kenya at Nairobi (Kuloba, J.) dated 17th June, 1999 in H.C.C.C. NO. 2874 OF 1987) *****************
R U L I N G
A series of mistakes has been committed by the applicant in trying to lodge a proper appeal. But is this by itself sufficient to deny him his undoubted right to canvass his appeal before this Court? I do not think so.
Despite failure to comply with the rules, the applicant has not been guilty of any delay. Each and every fault on his part has been penalised by way of costs.
Though the maxim that litigation must come to an end in the interest of justice is demanded by public policy this should not be used to deny a litigant his rights. I will exercise my discretion in favour of the applicant.
I will allow the application. I grant leave to file a notice of appeal out of time. This should be done within seven days hereof. The record of appeal shall be lodged 21 days thereafter. Costs of this application which I assess at Shs.5,000/= shall be paid to the respondents within ten days hereof.
Dated and delivered at Nairobi this 21st day of May, 2002.
P. K. TUNOI ............... JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR