Kimatu Mbuvi T/A Kimatu Mbuvi & Brothers v Augustino Munyao Kioko [2001] KECA 173 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a litigant cannot be punished twice for the same mistake when seeking more time to file an appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted an extension of time to file a notice of appeal and a record of appeal out of time following the striking out of his earlier appeal
- 2.Whether the applicant's earlier mistakes and the chequered history of the matter should bar the exercise of discretion in his favour
Key legal issues
#Scope of the court's discretion on a rule 4 extension-of-time application after a previous appeal has been struck out
The court considers only the applicant's conduct in the period from the striking out of the previous appeal to the filing of the present application; a prior striking out is sufficient punishment for the earlier fault and is not itself a reason to refuse a further extension.
The applicant's appeal had been struck out because counsel omitted exhibits from the record, a mistake counsel accepted. The court adopted the reasoning in Muchugi Kiragu that refusing an extension on that same basis would amount to double punishment over one fault. The applicant had acted with speed, filing the application nineteen days after the striking out, and the exhibits had now been obtained. No special reason was advanced to look beyond that period.
Legal principles established
#- In an application for extension of time under rule 4, the court confines itself to the period since the last order (the striking out of the previous appeal) and does not punish the applicant again for faults already sanctioned by the striking out of the earlier appeal.
Court orders
#- 1.Extension of time granted to file the notice of appeal and record of appeal
- 2.Notice of appeal to be filed within seven (7) days from the date of the order
- 3.Record of appeal to be lodged within fourteen (14) days thereafter
- 4.Respondent to have costs of the application assessed at KShs.10,000/=, payable within fourteen (14) days, in default execution to issue
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court (superior court) at Machakos
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Quotable passages
#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 order that the notice of appeal be filed within seven (7) days from the date hereof and thereafter the record of appeal be lodged within fourteen (14) days.
To refuse him an extension on that basis, would in my view amount t o double punishment over one fault.
in this particular application I am only dealing with the period from 3rd March, 2001, when this Court struck out the applicant's appeal to the 21st March, 2001, when this application was filed.
Issues in the judgment
#The case number of the present application is not stated in the judgment; only the number of the applicant's earlier struck-out appeal (NAI 99 of 2000) appears.
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.
- L Z Engineering Construction Limited v Trade Bank Limited (In Liquidation) [2000] KECA 182 (KLR)[2000] KECA 182 (KLR)17 Oct 2000distinguished
Cite this brief
#Cite this brief
Caselaw, "Kimatu Mbuvi T/A Kimatu Mbuvi & Brothers v Augustino Munyao Kioko [2001] KECA 173 (KLR)", Case Analysis (2001). Civil Application (not stated in judgment; applicant's prior appeal was No. NAI 99 of 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/173/eng@2001-08-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.