Nakuru Packers Limited v Erick Njenga Watitu [2018] KEELC 4354 (KLR)
The bottom line
#Kenya's High Court cannot extend time to file an appeal at the Court of Appeal, and only a properly substituted party can appear in a deceased litigant's case.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to extend time for filing an appeal to the Court of Appeal
The High Court/ELC lacks jurisdiction; only the Court of Appeal can extend the 60-day period under Rule 82
Section 7 of the Appellate Jurisdiction Act empowers the High Court only to extend time for giving notice of intention to appeal or applying for leave. The Notice of Appeal here was already filed within time; what was missing was the appeal itself, due within 60 days under Rule 82. Rule 4 vests discretion to extend Rule-limited periods in the Court of Appeal, which under Rule 2 means the Court of Appeal itself.
Whether the applicant had audience as a stranger to the suit
No; not having applied for substitution under Order 24 following the death of the defendant, the applicant could not appear
The original defendant Monica Nyambura Watitu died on 9 August 2011. The applicant obtained limited grants ad litem but never applied for substitution under Order 24. Until such an application is made and allowed, a stranger cannot present himself in the proceedings, so the application would in any event fail.
Relevance of Section 75 of the Civil Procedure Act to the application
Section 75 merely lists appealable orders and has no place in an extension-of-time application
Counsel for the applicant sought to rely on Section 75 of the Civil Procedure Act. The court held that the provision only lays down which orders are appealable; the proper framework for the relief sought (an out-of-time appeal to the Court of Appeal) is the Appellate Jurisdiction Act and the Court of Appeal Rules.
Legal principles established
#- The High Court's power to extend time under Section 7 of the Appellate Jurisdiction Act extends only to the filing of a Notice of Appeal, not the appeal itself; extension of time for filing the appeal lies with the Court of Appeal under Rule 4
- A person who has not been substituted for a deceased litigant under Order 24 of the Civil Procedure Rules has no audience before the court and cannot present proceedings
Court orders
#- 1.The application dated 15 June 2015 is dismissed
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Order 43 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, Cap 21 (as relied on by the applicant); Sections 7 and 75 of the Civil Procedure Act; Sections 3 and 7 of the Appellate Jurisdiction Act Cap 9; Rules 2, 4 and 82 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nakuru Packers Limited v Erick Njenga Watitu [2018] KEELC 4354 (KLR)", Case Analysis (2018). Application dated 15 June 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4354/eng@2018-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.