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Court of AppealAllowedCivil Application No. Nai. 136 of 1998 (Nyr. 11/98)· [1998] KECA 118 (KLR)

JOSEPH LIMA & 86 OTHERS vs ANN MERZ [1998] KECA 118 (KLR)

Court of Appeal of Kenya
29 October 1998
JGJ.E. Gicheru
593 words in judgment
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The bottom line

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Kenya's Court of Appeal granted 87 appellants more time to appeal because they acted promptly after fixing a missing document in their original appeal record.

What this practically means

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Executive summary

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This is a single-Judge (in chambers) ruling of the Court of Appeal at Nyeri on an application under rule 4 of the Court of Appeal Rules for extension of time to lodge a notice and record of appeal. The applicants, Joseph Lima and 86 others, sought to appeal against a ruling of Ong'udi, J. of the High Court at Meru in H.C.C.C. No. 393 of 1994, in which their suit had been struck out as frivolous and an abuse of process. Their original appeal (No. 291 of 1996) had been struck out on 12th May 1998 because the record omitted a master roll tendered in evidence in the superior court, in breach of rule 85(1)(f) of the Court of Appeal Rules. On the same day, having located the omitted document, the applicants filed the present application. The respondent filed a preliminary objection contending that the application did not indicate the nature of the notice and record of appeal upon which the court's discretion could be exercised, and that it was an abuse of process calculated to delay justice, counsel arguing that the intended appeal was not arguable. The court rejected the objection, holding that the application was filed without delay, that arguability was not for determination at that stage, and that there was no material showing the applicants were trifling with the court. Time was extended by 7 days for lodging the notice of appeal and 15 days thereafter for the record, with costs of KShs. 3,000/- awarded to the respondent.

Key legal issues

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01

Abuse of process / trifling with the court

Holding

The application was not an abuse of process; there was no material upon which trifling could be found.

Reasoning

The applicants' original appeal had been struck out for breach of rule 85(1)(f) because the record lacked a master roll. Upon finding the omitted document, they filed the extension application the same day, showing no delay. The arguability of the intended appeal was not for determination at that stage, and no material supported the claim that the applicants were trifling with the court.

p. 2
02

Exercise of discretion under rule 4

Holding

The discretion under rule 4 was exercised in favour of the applicants, extending time for the notice and record of appeal.

Reasoning

Given the promptness of the application and the absence of material showing abuse, the single Judge could not with justification deny the applicants the opportunity to ventilate their dissatisfaction with the superior court's decision striking out their suit. Time was extended by 7 days for the notice and 15 days thereafter for the record.

p. 2

Legal principles established

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  • Where an applicant promptly files an extension application upon finding the document whose omission caused the striking out of the original appeal, and there is no material showing abuse of process, the court should not deny extension of time.

Court orders

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  1. 1.Extension of time granted to lodge the notice of appeal by 7 days from the date of the ruling
  2. 2.Record of appeal to be lodged within 15 days from the date of lodging the notice of appeal
  3. 3.Respondent awarded costs of the application assessed at KShs. 3,000/- payable within 30 days, failing which execution to issue

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 85(1)(f)
On appeal from
High Court of Kenya at Meru
H.C.C.C. No. 393 of 1994
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "JOSEPH LIMA & 86 OTHERS vs ANN MERZ [1998] KECA 118 (KLR)", Case Analysis (1998). Civil Application No. Nai. 136 of 1998 (Nyr. 11/98). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/118/eng@1998-10-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.