[1999] KECA 58 (KLR)
The court found that although it doubted the necessity of waiting for a certified copy of the court order, the delay of twenty days was not so inordinate as to deprive the applicant of the court's discretion to extend time. The applicant had a right of appeal, and the explanation for the delay, while not entirely...
Source-derived case information.
- Citation
- [1999] KECA 58 (KLR)
- Parties
- Applicant: Republic; Respondent: Francis Ndungu Kirori; Respondent: Wanyonyi Wamatu; Respondent: Everlyne Murugi Rufus; Respondent: Cecilia Wambui Njoroge; Respondent: Patrick Gathitho Waithaka
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 10 of 1999
- Procedural Posture
- Criminal Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Notice of Appeal, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Francis Ndungu Kirori
Respondent
Wanyonyi Wamatu
Respondent
Everlyne Murugi Rufus
Respondent
Cecilia Wambui Njoroge
Respondent
Patrick Gathitho Waithaka
Respondent
Procedural Posture
Criminal Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the delay of twenty days in filing the application for extension of time was inordinate and justified refusal of extension.
- 2 Whether the absence of a certified copy of the court order striking out the notice of appeal was a valid reason for the delay.
Ratio Decidendi
The court found that although it doubted the necessity of waiting for a certified copy of the court order, the delay of twenty days was not so inordinate as to deprive the applicant of the court's discretion to extend time. The applicant had a right of appeal, and the explanation for the delay, while not entirely convincing, did not warrant refusal of the application. The court therefore exercised its discretion in favour of the applicant and allowed the motion for extension of time.
Court Disposition
application allowed
Orders
- The applicant must lodge its notice of appeal within seven days of the date hereof.
- The applicant must lodge its record of appeal within a further seven days from the date of lodging the notice of appeal.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CORAM: OMOLO, J.A. (IN CHAMBERS) CRIMINAL APPLICATION NO. NAI 10 OF 1999 BETWEEN
REPUBLIC .......................................... APPLICANT AND FRANCIS NDUNGU KIRORI WANYONYI WAMATU EVERLYNE MURUGI RUFUS CECILIA WAMBUI NJOROGE PATRICK GATHITHO WAITHAKA .........................RESPONDENTS
(Application for extension of time to file notice of appeal out of time from a ruling of the High Court of Kenya at Nairobi (Osiemo J) dated 18th June, 1998 in H.C.CR.Rev. NO. 47 OF 1997) ****************** R U L I N G
With respect to both Mr Okumu and Mr Ngwiri, I do not think I am called upon in this application to decide on the issue of whether or not the point of law is sufficiently important to warrant my extending the time. But I agree that is a factor the Court has to take into account. It is, however, agreed that the applicant had a right of appeal. The applicant in fact filed a notice of appeal but the same was struck out because it was defective. The striking out was on the 2nd June, 1999. On the 22nd June, 1999, the applicant lodged the present motion. There was a delay of twenty days which Mr Okumu explains on the basis that they were waiting for certified copy of the court order striking out their notice of appeal and that without the certified order the present motion would be defective. I very much doubt the correctness of that proposition, but in the end I have decided that a delay of twenty days is not such an inordinate one as should deprive me of my discretion to extend time. I accordingly allow the motion and make the following orders: 1. The applicant must first lodge its notice of appeal within seven days of the date hereof;
2. The applicant must then lodge its record of appeal within a further seven (7) days from the date of lodging the notice of appeal. These shall be my orders in the motion.
Dated and delivered at Nairobi this 1st day of November,
1999.
R.S.C. OMOLO --------------- JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR