[2005] KECA 243 (KLR)
The court found that although the delay in filing the record of appeal was about 79 days and appeared inordinate, it was satisfactorily explained as being caused by erroneous advice from the Court's Registry. The court emphasized that no prejudice would be suffered by the respondents if the extension was granted and...
Source-derived case information.
- Citation
- [2005] KECA 243 (KLR)
- Parties
- Applicant: Sampson Nderitu Karitu; Respondent: Martha Watetu Karitu substituted by Mary Wanjiku Karitu; Respondent: Joseph Ndumia Karitu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 168 of 2004
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Record of Appeal
- Outcome
- application granted
- Legal Topics
- Extension of Time, Appeals Process, Family Land Disputes, Registry Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sampson Nderitu Karitu
Applicant
Martha Watetu Karitu substituted by Mary Wanjiku Karitu
Respondent
Joseph Ndumia Karitu
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for the delay in filing the record of appeal.
- 2 Whether the delay of 79 days in filing the appeal is inordinate and, if so, whether it is excusable.
- 3 Whether granting the extension of time would prejudice the respondents.
Ratio Decidendi
The court found that although the delay in filing the record of appeal was about 79 days and appeared inordinate, it was satisfactorily explained as being caused by erroneous advice from the Court's Registry. The court emphasized that no prejudice would be suffered by the respondents if the extension was granted and that the interests of justice required the matter to be heard on its merits, particularly given the sensitive nature of family land disputes. The court reiterated its established practice of ensuring that land disputes are finally determined on their merits and not dismissed on technicalities. Accordingly, the court exercised its discretion in favour of the applicant and...
Court Disposition
application granted
Orders
- The applicant is granted leave to file the Record of Appeal out of time.
- The Record of Appeal shall be filed within 21 days of this ruling.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI
CORAM: TUNOI, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 168 OF 2004 (NYR.12/2004)
BETWEEN
SAMPSON NDERITU KARITU………………………….……………..APPLICANT
AND
1. MARTHA WATETU KARITUsubstituted by
MARY WANJIKU KARITU
2. JOSEPH NDUMIA KARITU……………….……………….RESPONDENTS
(Application for extension of time to file Record of Appeal from a judgment of the High Court of Kenya at Nyeri (Juma, J) dated 13. 3.03
in
H.C.SUCC.C. NO. 19 OF 1999)
***************
R U L I N G
The matter in issue in the intended appeal is a family land. It appears indeed sensitive. It is true there have been delays here and there in lodging the intended appeal.The delay is about 79 days. It appears inordinate on the face of it but it has been explained to my satisfaction. It was caused by the Court’s Registry which gave an erroneous advice.
I am satisfied that if I grant the application for extension of time to lodge the intended appeal the respondents will not be prejudiced in any manner. Perhaps it will ease the animosity within the family and probably the intended appeal if heard and determined will erase a permanent source of friction and fights between the parties.
I need not reiterate here that it is an established practice of this Court that all land disputes, wherever possible, should be finally determined by this Court and that no party who desires to be heard by the Court should be driven out of the seat of justice by technical application of the Rules see JOHN KIURIA VS. HELLEN WAHITUC.A. 19 OF 1985 (unreported).
I think that the applicant, having expressed his wish to have the appeal heard by this Court, should not be denied the right to do so. The interests of justice so demands because the breaches of the rules he is alleged to have committed cannot be allowed do frustrate an intended appeal.
I exercise my discretion in favour of the applicant. I grant the application as prayed. The applicant is granted leave to file the Record of Appeal out of time. He shall do so within 21 days hereof. The costs of this application are awarded to the respondents in any event.
DATED AND DELIVERED AT NYERI this 12th day of May, 2005.
P.K. TUNOI
………………………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR