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Court of AppealAllowedNot stated in judgment (prior appeal C.A. No. 161 of 1995 referenced)

ALEXANDER KAMWERU vs ANNE WANJIRU KAMWERU [2000] KECA 234 (KLR)

Court of Appeal of Kenya
10 February 2000
RKR. O. Kwach
175 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 gave a litigant a second chance to file his appeal because he acted within days of his first attempt failing.

What this practically means

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Executive summary

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This is a short single-judge ruling of the Court of Appeal delivered by Kwach JA at Nairobi on 10th February 2000, determining an application under rule 4 of the Court of Appeal Rules for extension of time to file a Notice of Appeal and a Record of Appeal. The underlying decision sought to be appealed was delivered by Bosire J (as he then was) on 9th May 1995. The applicant had already filed an appeal, C.A. No. 161 of 1995, but that appeal was struck out by the Court of Appeal as incompetent on 15th April 1997. The applicant moved promptly, filing the present Notice of Motion on 18th April 1997, three days after the striking out. The respondent was served with the application but did not appear. In the exercise of his discretion, Kwach JA allowed the application and extended time for filing the Notice of Appeal by seven days from the date of the ruling, and for lodging the Record of Appeal by fourteen days from the date of filing the Notice of Appeal. The court made no order as to costs. The ruling is brief and does not set out detailed principles governing the exercise of the rule 4 discretion, nor does it cite any authorities. Its practical significance lies in confirming that a litigant whose appeal has been struck out as incompetent may promptly seek an extension of time to recommence the appellate process, and that such an application may succeed even ex parte against a served but absent respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted an extension of time to file a Notice of Appeal and Record of Appeal after his earlier appeal was struck out as incompetent

Key legal issues

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01

Extension of time to file Notice of Appeal and Record of Appeal following striking out of an incompetent appeal

Holding

The court exercised its discretion under rule 4 in favour of the applicant, granting seven days to file the Notice of Appeal and fourteen days from filing the Notice to lodge the Record of Appeal.

Reasoning

The applicant's earlier appeal (C.A. No. 161 of 1995) against the decision of Bosire J of 9th May 1995 was struck out as incompetent on 15th April 1997. The applicant promptly moved by Notice of Motion on 18th April 1997, three days later. The respondent, though served, did not appear. In the exercise of the single judge's discretion, the delay was excused and limited extensions granted, with no order as to costs.

p. 2

Legal principles established

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  • The Court of Appeal may, in the exercise of its discretion under rule 4, extend time for filing a Notice of Appeal and lodging a Record of Appeal even after a prior appeal has been struck out as incompetent, provided the application is brought promptly.

Court orders

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  1. 1.Extension of time for filing a Notice of Appeal by seven (7) days from the date of the ruling
  2. 2.Extension of time for lodging the Record of Appeal by fourteen (14) days from the date of filing the Notice of Appeal
  3. 3.No order as to costs

The bench

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

RK
majority

Wrote the judgment

On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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.

In exercise of my discretion I allow the application and extend time for filing a Notice of Appeal by seven (7) days from today and for lodging the Record of Appeal by fourteen (14) days from the date of filing the Notice of Appeal.
p. 2Final orders - extension of time granted
The applicant appealed (C.A. No. 161 of 1995) against the decision but his appeal was struck out by this Court as incompetent on 15th April, 1997. He promptly brought this Notice of Motion on 18th April, 1997.
p. 2Promptness following striking out of incompetent appeal
There will be no order as to costs.
p. 2Costs

Issues in the judgment

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minor

The judgment does not state the names of the parties or the case number of the present application; only the prior appeal number (C.A. No. 161 of 1995) is given.

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, "ALEXANDER KAMWERU vs ANNE WANJIRU KAMWERU [2000] KECA 234 (KLR)", Case Analysis (2000). Not stated in judgment (prior appeal C.A. No. 161 of 1995 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/234/eng@2000-02-10

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