[2000] KECA 342 (KLR)
The court found that the applicant had demonstrated sufficient cause for the delay in filing the notice of appeal and record of appeal. The applicant had instructed her advocates and made a deposit, but the first firm failed to file the notice of appeal, and the second firm took an incorrect procedural step. The...
Source-derived case information.
- Citation
- [2000] KECA 342 (KLR)
- Parties
- Applicant: Susan Muthoni Kamau; Respondent: Peter Kanyua
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 267 of ??
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application allowed with conditions
- Legal Topics
- Extension of Time, Appeal Procedure, Advocate Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Muthoni Kamau
Applicant
Peter Kanyua
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file a notice of appeal and record of appeal out of time.
- 2 Whether the applicant's failure to file the notice of appeal in time was excusable due to the conduct of her advocates.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for the delay in filing the notice of appeal and record of appeal. The applicant had instructed her advocates and made a deposit, but the first firm failed to file the notice of appeal, and the second firm took an incorrect procedural step. The court held that the applicant should not be penalized for the mistakes of her advocates and exercised its discretion to grant the extension sought, subject to specific conditions regarding timelines and costs.
Court Disposition
application allowed with conditions
Orders
- The applicant must file and serve the notice of appeal within fourteen days of the ruling date.
- The record of appeal must be lodged within twenty-one days from the date of service of the notice of appeal on the respondent.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CORAM: OMOLO, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 267 OF 2000 (UR.124/2000)BETWEEN SUSAN MUTHONI KAMAU ..................................APPLICANT AND PETER KANYUA ..........................................RESPONDENT(An application for extension of time to file an intended appeal from the judgment & decree of the High Court at Nyeri (Juma J) dated 17th November, 1999in H.C.C.C. NO.86 OF 1991) ************** R U L I N G
The application herein was filed under a certificate of urgency. All that the applicant seeks is to be allowed to file an appeal out of time. I think I should allow her the extension she seeks. I would not have bothered much about her lack of funds but it is equally clear to me that she did instruct her advocates to file a notice of appeal and she even made some deposit of money to those advocates. The first firm of advocates did not even file a notice of appeal which is a simple document, and does not require much money. The second firm of advocates took a wrong course and instead filed an application for stay even before checking whether a notice of appeal had been filed. It is clear the applicant has been let down by her advocates and this, I think, is a good reason upon which I can exercise my discretion in her favour. I accordingly allow this motion on the following terms:-
(i) The applicant must file and serve on the respondent her notice of appeal within fourteen days of today's date. (ii) The record of appeal must be lodged within twenty-one days from the date of service of the notice of appeal on the respondent. (iii) The costs of this motion assessed at Shs.3,000/= shall be paid to the respondent by the applicant within thirty days of the date hereof. (iv)If all or any of these conditions are not complied with within the stipulated time, this motion shall stand dismissed with the costs as assessed.
Dated and delivered at Nairobi this 25th day of September, 2000.
R.S.C. OMOLO...............JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR