WATAHI KAIRU vs RAHAB WAMBUI WAWERU [1999] KECA 50 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Effect of a prior grant of extension of time to serve a Notice of Appeal on a later striking-out application
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.
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.
Legal principles established
#- 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
#- 1.The application to strike out the Notice of Appeal is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
No order as to costs - each party to bear their own costs
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.
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.
It is accordingly dismissed with no order as to costs.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.