[1997] KECA 137 (KLR)
The court exercised its discretion to grant the applicant leave to file a notice of appeal and record of appeal out of time, noting that the application was made promptly—within less than two working days after the previous appeal was struck out for procedural non-compliance. The absence of opposition from the...
Source-derived case information.
- Citation
- [1997] KECA 137 (KLR)
- Parties
- Applicant: Rajdip Housing Development Limited; Respondent: John Wacira Wambugu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 196 of 1996
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal and Record of Appeal
- Outcome
- Application allowed; extension of time granted; costs awarded to respondent.
- Judges
- AB Shah
- Legal Topics
- Extension of Time, Appeals Process, Notice of Appeal, Procedural Noncompliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rajdip Housing Development Limited
Applicant
John Wacira Wambugu
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal and Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to file a notice of appeal and record of appeal out of time.
- 2 Whether costs should be awarded to the respondent in the circumstances.
Ratio Decidendi
The court exercised its discretion to grant the applicant leave to file a notice of appeal and record of appeal out of time, noting that the application was made promptly—within less than two working days after the previous appeal was struck out for procedural non-compliance. The absence of opposition from the respondent and the lack of fault on the respondent's part in the striking out of the earlier appeal were also considered. The court found it just to allow the application but ordered the applicant to pay the respondent's costs, as the indulgence was necessitated by the applicant's own procedural lapse.
Court Disposition
Application allowed; extension of time granted; costs awarded to respondent.
Orders
- The applicant shall file a new notice of appeal within seven days.
- The applicant shall file the record of appeal within twenty-one days thereafter.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (CORAM: SHAH, J.A. (IN CHAMBERS) (CIVIL APPLICATION NO. NAI. 196 OF 1996)
BETWEEN
RAJDIP HOUSING DEVELOPMENT LIMITED ....................APPLICANT AND JOHN WACIRA WAMBUGU ...................................RESPONDENT
(An application for leave to file a Notice of Appeal and an Appeal out of time in an intended appeal from a Decree of the High Court of Kenya at Nairobi (Justice Akiwumi) dated 14th August, 1992 in H.C.C.C. NO. 3211 OF 1991) ******************
R U L I N G
Mr. Machira for the respondent is not opposing this application by Rajdip Housing Development Co. Limited for extension of time to file a notice of appeal and the consequent record of appeal out of time. There have been many decisions of this court recently allowing such applications as this one provided the applicant moves the court in good time.
This application was filed in a record time of less than two working days, after the first appeal, being C.A. No. 146 of 1992, was struck out as being incompetent, for want of inclusion of certified copy of the decree appealed against in the record of appeal. I allow this application in the circumstances and order that the new notice of appeal be filed within the next seven days and the record of appeal within 21 days thereafter . I think Mr. Machira is correct in seeking costs. It was not for his fault that the appeal in question was struck out. The applicant is seeking an indulgence. The applicant will pay costs of this application within the next 21 days, failing which execution may issue.
Dated and delivered at Nairobi this 29th day of April, 1997.
A.B. SHAH
...........................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
...................................
DEPUTY REGISTRAR