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Court of AppealAllowedCivil Application No. 71 of 2007

FRANCIS MBURU NJOROGE v PETER KABIBI KINYANJUI & ANOTHER [2007] KECA 243 (KLR)

Court of Appeal of Kenya
27 July 2007
WDW. S. Deverell
398 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed a single Judge can freely extend appeal deadlines even after your Record of Appeal is struck out.

What this practically means

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Executive summary

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This was a single-Judge application before the Court of Appeal at Nairobi under rule 4(1) of the Court of Appeal Rules, seeking an extension of time within which the applicant, Francis Mburu Njoroge, could lodge and serve a fresh Notice of Appeal and Record of Appeal. The intended appeal lay against the judgment of Osiemo J delivered on 27th June 2000 in H.C.C.C. No. 2643 of 1986. The original Notice of Appeal had been lodged in time, but the Record of Appeal was not filed in time and the original record was struck out on 13th March 2007. Counsel for the applicant, Mr Tiego, sought an extension of 21 days, running from the striking out of the original record to the filing of the current Notice of Motion on 3rd April 2007, and relied on the unreported decision in Alfred Ramaris and others vs. Association of Members Episcopal Conference in Eastern Africa. Counsel for the respondents, Mr Kamunda, did not oppose the application. Deverell JA held that a single Judge has an unfettered discretion under rule 4(1) to extend time for filing a fresh Notice of Appeal and Record of Appeal following the striking out of the original record. In light of the respondents' non-opposition and the short period sought, the discretion was exercised in the applicant's favour. The court extended the time for lodging and serving the Notice of Appeal to seven days from the date of the order, directed that the Record of Appeal be lodged and served within fourteen days of the lodging of the Notice, and ordered that costs of the application be 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 single Judge should exercise his discretion under rule 4(1) to extend time for lodging and serving a fresh Notice of Appeal and Record of Appeal following the striking out of the original Record of Appeal

Key legal issues

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Whether extension of time should be granted for lodging a fresh Notice of Appeal and Record of Appeal after striking out of the original record

Holding

Yes. The court exercised its unfettered discretion under rule 4(1) in favour of the applicant, noting the unopposed nature of the application and the relatively short 21-day period sought.

Reasoning

The original Notice of Appeal was lodged in time but the record of appeal was not. The original record was struck out on 13th March 2007 and the fresh application was filed on 3rd April 2007, a delay of 21 days. The respondents, through counsel, did not oppose the application. Given the short extension sought and the absence of opposition, the single Judge exercised his discretion in the applicant's favour.

p. 2

Legal principles established

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  • A single Judge of the Court of Appeal has an unfettered discretion under rule 4(1) to extend time for filing a fresh Notice of Appeal and Record of Appeal after the original Record of Appeal has been struck out.

Court orders

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  1. 1.Time within which the applicant may lodge and serve his Notice of Appeal is extended to expire seven days from 27th July 2007
  2. 2.The Record of Appeal shall be lodged and served within fourteen days from the lodging of the Notice of Appeal
  3. 3.Costs of the application shall be in the intended appeal

The bench

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

WD
majority

Wrote the judgment

On appeal from
High Court of Kenya, Nairobi
H.C.C.C. No. 2643 of 1986
Jurisdiction invoked
Rule 4(1) of the Court of Appeal Rules (single Judge's discretion to extend 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 applications under rule 4 (1), as a single Judge, have an unfettered discretion to extend the time for filing a fresh Notice of Appeal and Record of Appeal following upon the striking out of the Record of Appeal originally filed.
p. 2Single Judge's discretion under rule 4(1)
I hereby order that the time within which the application Francis Mburu Njoroge may lodge and serve his Notice of Appeal is extended to expire seven days from today.
p. 2Final orders - extension granted

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, "FRANCIS MBURU NJOROGE v PETER KABIBI KINYANJUI & ANOTHER [2007] KECA 243 (KLR)", Case Analysis (2007). Civil Application No. 71 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/243/eng@2007-07-27

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