ROSE NYABOKE OTONDI vs TOM MURUNGA [1998] KECA 120 (KLR)
The bottom line
#Kenya's Court of Appeal excused a lawyer's filing mistake and gave the appellant 21 days to file the appeal record, but refused an unnecessary time extension.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to file a notice of appeal where one was already filed
The prayer failed because the notice of appeal was filed within time and remained valid on record; there was nothing for the court to extend.
The applicant filed a notice of appeal on 8th April 1997, within the required time after the ruling of 26th March 1997. No order striking out that notice was shown to the court. Even if the notice were defective, that was a matter for the full Court on a proper application, not for a single Judge on an extension motion. Accordingly the first prayer was rejected.
Extension of time to lodge the record of appeal
Extension granted: counsel's mistake in believing a record of appeal had been filed, caused by mislabelling of a stay motion, was excusable and justified exercise of discretion in the applicant's favour.
The applicant had been keen to challenge the judgment since becoming aware of it, filing a set-aside application and a timely notice of appeal. The failure to file the record stemmed from counsel's mistaken belief, induced by a wrongly labelled motion, that a record had been filed. The court held such a counsel mistake excusable and found sufficient material to exercise its discretion in the applicant's favour, allowing twenty-one days to lodge the record.
Alleged defects in the notice of appeal and the intended record of appeal
Questions of defectiveness of the notice of appeal or the absence of a memorandum of appeal in the intended record were not matters for determination on the extension motion.
The respondent contended the notice of appeal was incurably defective and that the record would be defective for lacking a memorandum of appeal. The Judge held these were not matters for him at that stage; if the eventual record were defective, the respondent would know how to address that. Similarly, striking out a notice of appeal is not within a single Judge's powers on such a motion.
Legal principles established
#- A single Judge of the Court of Appeal cannot strike out a notice of appeal; that power lies with the full Court on a proper application.
- A mistake by counsel, such as mislabelling a document and thereby believing an appeal had been filed, may be excusable and attract the court's discretion in favour of the defaulting party on an extension-of-time application.
Court orders
#- 1.Rejection of the prayer for extension of time to file a notice of appeal
- 2.Leave granted to the applicant to file a record of appeal out of time, within twenty-one days of the date of the ruling
- 3.The applicant to pay the respondent the costs of the motion in any event
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 65 of 1995
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application to a single Judge for extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ROSE NYABOKE OTONDI vs TOM MURUNGA [1998] KECA 120 (KLR)", Case Analysis (1998). Civil Application No. Nai. 109 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/120/eng@1998-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.