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Court of AppealDismissedCivil Application No. NAI. 241 of 2001 (KSM. 40/01)· [2002] KECA 181 (KLR)

Viram Gordhania v Lake Nursing Home Ltd [2002] KECA 181 (KLR)

Court of Appeal of Kenya
12 March 2002
MKM. Ole Keiwua
420 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a second chance to appeal because the applicant again filed an undated, defective copy of the court decree.

What this practically means

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Executive summary

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This is a ruling by Keiwua, JA, sitting in chambers at Kisumu, on the applicant's application for extension of time to file and serve a notice of appeal and record of appeal out of time, from a judgment of the High Court at Kisumu (Wambilyangah, J) delivered on 12 October 1999 in H.C.C.C. No. 423 of 1994. An earlier appeal had been struck out on 21 June 2001 because the copy of the decree appealed from was undated; the present application was filed on 29 June 2001 without delay. The applicant, through counsel Mr. Kasamani, conceded that the copy of the decree annexed to the application was again defective: it bore the date of the judgment (12 October 1999) but was shown as given on 14 December 1999, and lacked the date on which it was given. The respondent pointed out that the applicant already had a dated copy of the decree in the earlier record of appeal, which had not been set aside. The court acknowledged the principle that a litigant should not be punished twice for the same default, but held that the fresh defect in the decree was a major default and sufficiently grave to dispose of the application. The application was dismissed with costs to the respondent on 12 March 2002.

Key legal issues

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Whether extension of time should be granted where the copy of the decree supporting the application is undated and defective

Holding

The application was dismissed because the copy of the decree annexed was undated and internally inconsistent, a grave defect dispositive of the application

Reasoning

The earlier appeal had been struck out because the copy of the decree was undated. The new application annexed a decree still lacking a date, and shown as dated 12th October 1999 when judgment was delivered yet given on 14th December 1999. Counsel for the applicant conceded the defect. The court held that although a litigant should not be punished twice for the same default, this fresh, grave default in the very document central to the appeal could not be ignored and justified dismissal.

p. 2

Legal principles established

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  • An applicant who has already been penalised by striking out of an appeal for a default should not be punished a second time for the same default, but a fresh and grave defect in the documents supporting a new extension application is itself fatal to that application

Court orders

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  1. 1.The application for extension of time to file and serve the notice of appeal and record of appeal out of time is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 423 of 1994
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal to extend time for filing and serving notice of appeal and record of appeal (single Judge in chambers)

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, "Viram Gordhania v Lake Nursing Home Ltd [2002] KECA 181 (KLR)", Case Analysis (2002). Civil Application No. NAI. 241 of 2001 (KSM. 40/01). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/181/eng@2002-03-12

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