Fredrick J. P. Arodi & Dorcas Jane Onditi v I. W. Waweru t/a Wathiomo Safaris & Julius Musee Korir
The bottom line
#Kenya's Court of Appeal confirmed you can't be punished twice for the same filing mistake when seeking more time to appeal.
What this practically means
#Executive summary
#Key legal issues
#Relevant period of delay for extension of time after a record of appeal is struck out
The relevant delay runs from the date the previous appeal was struck out to the date the new motion was filed, not from earlier events.
The court held that events preceding the striking out of the earlier record of appeal could not be re-litigated in the fresh motion, since those defaults had already been punished by the striking out. Only the fresh delay of roughly six weeks needed explanation, and it was not inordinate.
Whether a notice of appeal is struck out when the record of appeal is struck out
The court declined to decide the point, leaving it open for the respondents to challenge any newly lodged record.
The judge noted the point remains debated in the Court of Appeal and declined to presume to decide it in a Rule 4 extension motion. He observed that if the respondents believe the new record lacks a valid notice of appeal, they may apply to strike it out.
Legal principles established
#- Defaults already punished by striking out an appeal cannot be relied on again as grounds for refusing an extension of time.
- A short, though unexplained, delay that is not inordinate does not bar the court from exercising its discretion to extend time.
Court orders
#- 1.Applicants granted leave to file the memorandum of appeal out of time
- 2.Applicants to lodge their record of appeal within fourteen days of the date of the ruling
- 3.Costs of the motion to be costs in the intended appeal
- On appeal from
- High Court of Kenya at Kisumu
- Kisumu H.C.C.C. No. 242 of 1990
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- DANCAN GICHURU NJUGUNA v MARY WANJIRU NDICHU[2017] KEHC 2954 (KLR)5 Oct 2017
Cite this brief
#Cite this brief
Caselaw, "Fredrick J. P. Arodi & Dorcas Jane Onditi v I. W. Waweru t/a Wathiomo Safaris & Julius Musee Korir", Case Analysis (1998). Civil Application No. NAI. 127 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/272/eng@1998-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.