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Court of AppealDismissedCivil Application No. NAI. 105 of 1997

WATAHI KAIRU vs RAHAB WAMBUI WAWERU [1999] KECA 50 (KLR)

Court of Appeal
23 March 1999
158 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled you cannot strike out a Notice of Appeal whose late service the court has already excused by extending time.

What this practically means

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Executive summary

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This is a brief ruling of the Court of Appeal at Nairobi (Kwach, Tunoi and Lakha, JJ.A.) delivered on 23rd March 1999 in Civil Application No. NAI. 105 of 1997. The applicant, Watahi Kairu, sought to strike out a Notice of Appeal filed by the respondent, Rahab Wambui Waweru, in an intended appeal from the judgment of the High Court of Kenya at Nairobi (Khamoni, J.) dated 15th November 1990 in H.C.C.(OS) No. 3195 of 1981. The Court disposed of the application on a single, short ground: it had already, on 24th October 1997 in Civil Application No. NAI 150/97, granted an extension of time to serve the Notice of Appeal on the applicant. In light of that prior order, the Court held that the striking-out application could not succeed. The application was accordingly dismissed with no order as to costs. The ruling contains no citation of authorities or statutory provisions, no separate opinions, and no dissent; it is a single judgment of the whole court. Its binding significance lies in the proposition that a party cannot pursue a striking-out application against a Notice of Appeal whose service the Court has already validated by an extension-of-time order. The decision below was not disturbed, as the ruling dealt only with this interlocutory application 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 application to strike out the Notice of Appeal could succeed given that the Court had already granted an extension of time to serve the Notice of Appeal

Key legal issues

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01

Effect of a prior grant of extension of time to serve a Notice of Appeal on a later striking-out application

Holding

The application to strike out the Notice of Appeal was dismissed because the Court had already extended time for service of the Notice in Civil Application No. NAI 150/97.

Reasoning

The Court reasoned that its earlier order of 24th October 1997 in Civil Application No. NAI 150/97, granting an extension of time to serve the Notice of Appeal, was determinative. Having validly extended time, the Court could not then strike out the Notice of Appeal on the basis of the delay that the extension had already cured. The application therefore could not succeed and was dismissed with no order as to costs.

p. 2

Legal principles established

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  • Where the Court of Appeal has already granted an extension of time to serve a Notice of Appeal, a subsequent application to strike out that Notice of Appeal cannot succeed.

Court orders

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  1. 1.The application to strike out the Notice of Appeal is dismissed
  2. 2.No order as to costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.(OS) No. 3195 of 1981
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over applications in intended appeals (application to strike out a Notice of Appeal)

Relief refused

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Striking out of the Notice of Appeal

The Court had already granted an extension of time to serve the Notice of Appeal in a prior application, so the striking-out application could not succeed

p. 2

Costs

No order as to costs - each party to bear their own costs

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.

As extension of time to serve the Notice of Appeal on the applicant was given by this Court on 24th October, 1997, in Civil Application No NAI 150/97, this application cannot succeed.
p. 2Prior extension of time bars striking out the Notice of Appeal
It is accordingly dismissed with no order as to costs.
p. 2Final orders - dismissal and costs

Issues in the judgment

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minor

The costs order is expressed as 'no order as to costs', which is recorded here as each party bearing their own costs; the judgment does not use that exact phrase.

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, "WATAHI KAIRU vs RAHAB WAMBUI WAWERU [1999] KECA 50 (KLR)", Case Analysis (1999). Civil Application No. NAI. 105 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/50/eng@1999-03-23

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