[2002] KECA 116 (KLR)
The court found that although the application for extension of time was premature due to the advocate's failure to read the relevant rule, the applicant himself should not be unduly penalized for his advocate's negligence. The court exercised its unfettered discretion to allow the application, noting that the...
Source-derived case information.
- Citation
- [2002] KECA 116 (KLR)
- Parties
- Applicant: Samuel Mwangi Maina; Respondent: Charles Muthigani Waithaka; Respondent: Stephen Wachira
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 428 of 2001
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application allowed with conditions
- Judges
- AB Shah
- Legal Topics
- Extension of Time, Appeals Process, Procedural Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Mwangi Maina
Applicant
Charles Muthigani Waithaka
Respondent
Stephen Wachira
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant is entitled to an extension of time to file the record of appeal out of time.
- 2 Whether the premature filing of the application affects the applicant's right to appeal.
- 3 Whether the applicant should be penalized for his advocate's negligence.
Ratio Decidendi
The court found that although the application for extension of time was premature due to the advocate's failure to read the relevant rule, the applicant himself should not be unduly penalized for his advocate's negligence. The court exercised its unfettered discretion to allow the application, noting that the intended appeal was not frivolous and concerned inheritance of land. However, the court imposed a condition that the applicant must pay the respondents' costs assessed at KES 4,000 within 30 days, failing which the application would stand dismissed without further order.
Court Disposition
application allowed with conditions
Orders
- The application for extension of time is allowed.
- The record of appeal must be lodged within the next 30 days.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI
CORAM: SHAH, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 428 OF 2001
BETWEEN
SAMUEL MWANGI MAINA ....................................APPLICANT AND CHARLES MUTHIGANI WAITHAKA STEPHEN WACHIRA ......................................RESPONDENTS
(Application for extension of time to file an appeal from a Judgment of the High Court of Kenya at Nyeri (Mr. Justice J.V.O. Juma) dated 15th February, 2001
in HC.SUCC. NO. 306 OF 1994) **************
R U L I N G
The applicant seeks leave to lodge his record of appeal out time. His advocates lodged the notice of appeal, in time, on 27th February, 2001. The said advocates applied for copies of proceedings and judgment again in time and served a copy of the letter bespeaking copies of proceedings and judgment on the advocates for the respondents in time. They obtained copies of proceedings and judgment on 9th October, 2001. They had 60 days from 9th October, 2001 to lodge their clients' record of appeal. Instead they lodged this application on 18th October, 2001 for the extension of time to lodge a record of appeal. Quite clearly, as Mr. Okeyo pointed out, the application was premature as the time to lodge the record of appeal had not run out. It has now run out. Mr. Wachira who appears for the applicant says he overlooked the proviso to rule 81(1) of the Rules of this Court; that it was oversight on his part he said. Not reading a rule and a simple one at that is sheer negligence. What I do in those circumstances? The applicant is the aggrieved party. He probably has no idea that his advocate has bungled or that he has not read one of our rules. The dispute refers to inheritance of a parcel of land. I am unable to say that the intended appeal is frivolous.
Using the unfettered discretion that I have, I allow this application and order that the record of appeal be lodged within the next 30 days but I make this a conditional order. The condition I impose is that the applicant will pay the respondents' costs which I assess at Shs.4,000/= within the next 30 days. If he does not pay this sum this application will stand dismissed with costs without any further order.
Dated and delivered at Nyeri this 10th day of May, 2002.
A. B. SHAH
......................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR