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Court of AppealAllowedNot stated in the ruling; the previous appeal referred to was Civil Appeal No. 225 of 2003

Teresa Moraa Omundi & another v Stephen Kendu Nyaega [2005] KECA 45 (KLR)

Court of Appeal
29 November 2005
EOE. O. O'Kubasu
214 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal let the applicants restart their appeal after the first was struck out on a technicality, because they acted quickly.

What this practically means

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Executive summary

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This is a single-judge interlocutory ruling of the Court of Appeal, Kisumu, delivered by O'Kubasu, JA, on 29 November 2005. The applicants moved the Court under rule 4 of the Court of Appeal Rules for leave to file and serve a notice of appeal and a record of appeal out of time. Their difficulty was procedural: their previous appeal, Civil Appeal No. 225 of 2003, had been struck out on 23 June 2005 'on a technicality', having been filed out of time without leave of the Court. Ten days later, on 4 July 2005, they lodged the present application. The Court found that there was no delay in bringing the application and noted that Mr Kimanga, counsel for the respondent, did not oppose it except as to costs. On those facts the Court exercised its discretion in the applicants' favour: the application was allowed, with directions that the notice of appeal be filed and served within seven days and the record of appeal be lodged within thirty days from the date the notice is filed. Costs of the application were assessed at Kshs 5,000 and awarded to the respondent, payable within ten days, failing which execution would issue. No authorities were cited and the ruling turns on the exercise of the single Judge's discretion under rule 4 rather than on any question of principle. The order striking out the previous appeal was not disturbed; the ruling instead opens the way for a fresh, properly constituted appeal on the same dispute. Notably, the ruling as reproduced does not state the parties' names or the application's own number; the matter is identified only through the prior appeal number.

Questions the Court framed

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

  1. 1.Whether the applicants should be granted leave to file and serve the notice of appeal and the record of appeal out of time, following the striking out of their previous appeal (Civil Appeal No. 225 of 2003).
  2. 2.Whether there was any delay in bringing the fresh application.

Key legal issues

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01

Whether leave should be granted to the applicants to file and serve the notice of appeal and record of appeal out of time.

Holding

Yes. The application was allowed: the applicants were directed to file and serve the notice of appeal within seven days and to lodge the record of appeal within thirty days from the date the notice is filed.

Reasoning

The applicants' previous appeal, Civil Appeal No. 225 of 2003, had been struck out on 23 June 2005 purely as a technicality because it had been filed out of time without leave of the Court. The present rule 4 application was lodged on 4 July 2005, roughly ten days after the striking out, so the court found there was no delay. Counsel for the respondent (Mr Kimanga) did not oppose the application except on costs. On these facts the single Judge of Appeal exercised his discretion in the applicants' favour and allowed the application with consequential filing timelines.

p. 2
02

Whether there was delay in bringing the fresh application.

Holding

No. The application was filed about ten days after the previous appeal was struck out, and the court expressly treated this as absence of delay.

Reasoning

Delay is a central consideration on an application for leave to appeal out of time. The court measured promptness from the date the previous appeal was struck out (23 June 2005); the fresh application followed on 4 July 2005, roughly ten days later, which the court expressly found to involve no delay. Combined with the respondent's non-opposition save as to costs, this justified exercising the rule 4 discretion in the applicants' favour and allowing the application.

p. 2

Legal principles established

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  • Leave may be granted under rule 4 of the Court of Appeal Rules to file a fresh notice of appeal and record of appeal out of time notwithstanding that a previous appeal in the same matter was struck out as filed out of time without leave.
  • Promptness is decisive on such an application: a fresh application lodged promptly after the striking out of the prior appeal discloses no delay warranting refusal of leave.
  • Where an application for leave to appeal out of time is unopposed save as to costs, it will be allowed with fixed timelines for filing the notice of appeal and lodging the record of appeal.

Court orders

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  1. 1.The application is allowed.
  2. 2.The applicants to file and serve the notice of appeal within seven (7) days from the date of the ruling (29th November 2005).
  3. 3.The applicants to lodge the record of appeal within thirty (30) days from the date the notice of appeal is filed.
  4. 4.Costs of the application assessed at Kshs. 5,000/- awarded to the respondent, to be paid within 10 days, in default of which execution to issue.

The bench

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

EO
majority

Wrote the judgment

Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application to a Judge of Appeal for leave to appeal out of time)

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 view of the foregoing, this application is allowed and the applicants are to file and serve the notice of appeal within seven (7) days from the date hereof and lodge the record of appeal within thirty (30) days from the date the notice of appeal is filed.
p. 2Disposition – leave to appeal out of time granted with filing timelines
Costs assessed at Kshs. 5,000/- awarded to the respondent which amount should be paid within 10 days from today in default execution to issue.
p. 2Costs order of the application
The applicants’ previous appeal (Civil Appeal No. 225 of 2003) was struck out on 23rd June, 2005 on a technicality in that it was filed out of time without leave of the Court.
p. 2Background – prior appeal struck out on a technicality
This application was then filed on 4th July, 2005 which was about ten days after the previous appeal was struck out.
p. 2Absence of delay in the fresh rule 4 application

Issues in the judgment

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minor

The ruling does not state the names of the parties or the number of this application; the caseTitle, caseNumber and party names are therefore descriptive placeholders derived solely from the text.

minor

Typographical/OCR defect in the source text (missing space in 'thisapplication'); verbatim quotes have otherwise been drawn from clean sentences.

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, "Teresa Moraa Omundi & another v Stephen Kendu Nyaega [2005] KECA 45 (KLR)", Case Analysis (2005). Not stated in the ruling; the previous appeal referred to was Civil Appeal No. 225 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/45/eng@2005-11-29

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