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Court of AppealAllowedCivil Application (Nairobi) - rule 4 application following struck-out appeal C.A No. 28 of 1998

SAMUEL MUIRURI GICHINA vs EVANSON KIMEMIA [1999] KECA 166 (KLR)

Court of Appeal of Kenya
13 July 1999
EOE. Owuor
218 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal can extend missed appeal deadlines under Rule 4, especially when the other side doesn't object to the application.

What this practically means

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Executive summary

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This is a short single-Judge ruling of the Court of Appeal at Nairobi delivered by Owuor JA on 13th July 1999, determining an unopposed Notice of Motion by Samuel Muiruri Gichina under rule 4 of the Court of Appeal Rules seeking extension of time to file a notice of appeal and record of appeal against the judgment of Nambuye J in Nakuru H.C.C.C No. 240 of 1990 delivered on 27th May 1994. The applicant's earlier appeal, C.A No. 28 of 1998, had been struck out by the Court on 28th June 1998 because the notice of appeal in that appeal had not been served on the respondent. The present application was filed immediately thereafter. Counsel for the respondent, Mr Waweru, did not oppose the application, and the Judge considered that non-opposition to be well founded. Exercising the discretion conferred by rule 4, the Court extended time for filing the notice of appeal by seven days from the date of the ruling and directed that the record of appeal be filed within twenty-one days from the date of filing the notice of appeal. The costs of the application were awarded to the respondent. The ruling is a routine discretionary decision on extension of time rather than a substantive appellate determination, and it does not disturb the High Court judgment, which remains the decision under challenge in the intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court should exercise its discretion under rule 4 to extend time for filing a notice of appeal and record of appeal

Key legal issues

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01

Extension of time under rule 4 of the Court of Appeal Rules

Holding

Time was extended for seven days for the notice of appeal and 21 days thereafter for the record of appeal, the respondent not objecting to the application.

Reasoning

A previous appeal (C.A No. 28 of 1998) had been struck out because the notice of appeal was not served on the respondent. The applicant immediately filed this rule 4 application. Counsel for the respondent did not oppose it, which the single Judge regarded as the right course, and the discretion under rule 4 was accordingly exercised in the applicant's favour.

p. 2

Legal principles established

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  • The Court may exercise its discretion under rule 4 to extend time for filing a notice of appeal and record of appeal, particularly where the respondent does not object.

Court orders

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  1. 1.Extension of time for filing the Notice of appeal by seven days from the date of the ruling
  2. 2.Record of appeal to be filed within 21 days from the date of filing the Notice of appeal
  3. 3.Costs of the application to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EO
majority

Wrote the judgment

On appeal from
High Court of Kenya
Nakuru H.C.C.C No. 240 of 1990
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I hereby exercise my discretion under rule (4) of this Court's Rules and extend the time for filing the Notice of appeal by seven days from today's date and thereafter the record of appeal be filed within 21 (twenty one) days from the date of filing of the Notice of appeal.
p. 2Final orders - extension of time granted
A previous appeal C.A No. 28 of 1998 was struck out by this Court on 28th of June, 1998 on the ground that the Notice of appeal therein had not been served upon the respondent.
p. 2Background - prior appeal struck out for non-service

Issues in the judgment

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minor

The judgment does not state the name of the respondent, the application number, or the neutral citation; the case title and number are reconstructed from the narrative.

minor

The judgment is dated 13th July 1999 but states the application was filed on 1st of July, 1999, immediately after the striking out on 28th of June, 1998 - the year of filing appears inconsistent with the striking-out date.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "SAMUEL MUIRURI GICHINA vs EVANSON KIMEMIA [1999] KECA 166 (KLR)", Case Analysis (1999). Civil Application (Nairobi) - rule 4 application following struck-out appeal C.A No. 28 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/166/eng@1999-07-13

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