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Court of AppealAllowedCivil Application (Notice of Motion following striking out of Civil Appeal No. 52 of 1998)· [2000] KECA 71 (KLR)

A. H. Nurani v 1. B.h. Lalji 2. D. H. Nurani 3. Samvir Management Services Limited 4. Atta (kenya) Limited & 2 others

Court of Appeal of Kenya
6 July 2000
RKR. O. Kwach
565 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a lawyer's honest mistake to be fixed, extending time to appeal because the errors were accidental and acted on quickly.

What this practically means

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Executive summary

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This was an application under rule 4 of the Court of Appeal Rules by A.H. Nurani for extension of time to lodge a Notice of Appeal and a Record of Appeal against a decision of Aluoch J given on 19th February 1998. The applicant had earlier filed Civil Appeal No. 52 of 1998, which the Court struck out on 7th April 2000 as incompetent because the extracted formal order omitted the costs order, contained an uninitialled handwritten alteration, and incorporated the order granting leave to appeal. Six days after the striking out, the applicant filed this Notice of Motion, which as drawn did not specifically seek extension of time to lodge a Notice of Appeal. Counsel for the applicant sought to amend informally; the first respondent objected that the amendment had to be made formally. Kwach JA rejected the objection, holding that such an application may be made in the course of a hearing under rule 42(3) where no prejudice results to the other side. On the merits, the court found the defects in the earlier appeal stemmed from genuine, non-deliberate mistakes for which the applicant's advocate accepted responsibility, and that the application was filed within days of the striking out, so there was no delay. The court granted the application, extending time for filing the Notice of Appeal by seven days and for lodging the Record of Appeal by fourteen days from the date of filing the Notice of Appeal, with costs of the application to be in the appeal.

Key legal issues

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01

Informal amendment of a Notice of Motion at the hearing

Holding

The court may permit an informal application to amend the Notice of Motion to include a prayer for extension of time where no prejudice will result to the other side.

Reasoning

Counsel for the first respondent objected that such an application had to be made formally. The court rejected the objection, holding that rule 42(3) permits the application to be made in the course of a hearing provided the other side suffers no prejudice. Counsel for the other respondents did not object to the amendment.

p. 3
02

Effect of an inadvertent mistake on the discretion to extend time

Holding

A genuine, non-deliberate mistake by an advocate does not bar the exercise of the court's discretion to extend time.

Reasoning

The earlier appeal was struck out because the extracted order omitted the costs order and included the leave order in the formal order, and because of an uninitialled handwritten alteration. The court accepted the applicant's advocate accepted responsibility but found the errors were genuine mistakes any advocate could make, not deliberate, so the discretion remained available.

p. 3
03

Delay in bringing the application

Holding

There was no delay where the application was filed within days of the appeal being struck out.

Reasoning

The appeal was struck out on 7th April 2000 and the Notice of Motion was taken out six days later, on 13th April 2000. The court found the application was filed within a matter of days and therefore there was no delay weighing against the exercise of discretion.

p. 3

Legal principles established

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  • An application to amend a Notice of Motion to add a prayer for extension of time may be made informally at the hearing where no prejudice results to the other side.
  • A mistake that is not deliberate does not disentitle a party to the court's discretion to extend time.

Court orders

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  1. 1.Leave granted to amend the Notice of Motion to include a prayer for extension of time to lodge a Notice of Appeal
  2. 2.Extension of time for filing the Notice of Appeal by seven days from the date of the ruling
  3. 3.Extension of time for lodging the Record of Appeal by 14 days from the date of filing the Notice of Appeal
  4. 4.Costs of the application to be in the appeal
On appeal from
High Court of Kenya
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), with amendment allowed under rule 42(3)

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, "A. H. Nurani v 1. B.h. Lalji 2. D. H. Nurani 3. Samvir Management Services Limited 4. Atta (kenya) Limited & 2 others", Case Analysis (2000). Civil Application (Notice of Motion following striking out of Civil Appeal No. 52 of 1998). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/71/eng@2000-07-06

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