[2005] KECA 45 (KLR)
The court found that the applicants acted promptly in bringing the application for extension of time, as it was filed about ten days after the previous appeal was struck out. There was no evidence of undue delay or prejudice to the respondent. The respondent did not oppose the application on its merits but only...
Source-derived case information.
- Citation
- [2005] KECA 45 (KLR)
- Parties
- Applicant: Teresa Moraa Omundi; Applicant: Nyanchoka Omari; Respondent: Stephen Kendu Nyaega
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 216 of 2005
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- Application allowed. Leave granted to file and serve notice and record of appeal out of time. Costs awarded to respondent.
- Legal Topics
- Extension of Time, Appeals Process, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresa Moraa Omundi
Applicant
Nyanchoka Omari
Applicant
Stephen Kendu Nyaega
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicants should be granted leave to file and serve the notice and record of appeal out of time.
- 2 Whether there was undue delay in bringing the application for extension of time.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the applicants acted promptly in bringing the application for extension of time, as it was filed about ten days after the previous appeal was struck out. There was no evidence of undue delay or prejudice to the respondent. The respondent did not oppose the application on its merits but only sought costs. Accordingly, the court exercised its discretion to allow the application, granting the applicants leave to file and serve the notice of appeal within seven days and the record of appeal within thirty days thereafter. Costs of Kshs. 5,000 were awarded to the respondent, payable within ten days, failing which execution would issue.
Court Disposition
Application allowed. Leave granted to file and serve notice and record of appeal out of time. Costs awarded to respondent.
Orders
- Applicants to file and serve the notice of appeal within seven (7) days from the date hereof.
- Applicants to lodge the record of appeal within thirty (30) days from the date the notice of appeal is filed.
Full Case Text
Judgment text and source record
6 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU CIVIL APPLICATION NAI 216 OF 2005 (17/2005) BETWEEN1 TERESA MORAA OMUNDI 2 NYANCHOKA OMARI……………………………………………..APPLICANTS AND STEPHEN KENDU NYAEGA……………….………………………..RESPONDENT (An application to file and serve Notice and Record of Appeal out of time from the Judgment & Decree of the High Court of Kenya at Kisii (Birech Commissioner of Assize) dated 17th June, 2003 in HCCC NO 105 OF 2005 (O.S.) ****************
RULING This is an application under rule 4 of the Court of Appeal Rules in which the applicants are seeking leave to file and serve notice of appeal and record of appeal out of time. The applicants’ previous appeal (Civil Appeal No. 225 of 2003) was struck out on 23rd June, 2005 on a technicality in that it was filed out of time without leave of the Court. This application was then filed on 4th July, 2005 which was about ten days after the previous appeal was struck out. Clearly, there was no delay in bringing thisapplication. Mr Kimanga, for the respondent, does not oppose the application save for the costs of the application.
In view of the foregoing, this application is allowed and the applicants are to file and serve the notice of appeal within seven (7) days from the date hereof and lodge the record of appeal within thirty (30) days from the date the notice of appeal is filed. Costs assessed at Kshs. 5,000/- awarded to the respondent which amount should be paid within 10 days from today in default execution to issue.
Made at Kisumu this 29th day of November, 2005. E. O. O’KUBASU……………………………JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR