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|Case Number:||civil appl no. nai. 175 of 1996|
|Parties:||Geoffrey Chege Nuthu v Averalli & Brothers|
|Date Delivered:||21 Feb 1997|
|Court:||Court of Appeal at Nakuru|
|Judge(s):||Abdulrasul Ahmed Lakha|
|Citation:||Geoffrey Chege Nuthu Vs Averalli & BrotherseKLR|
|Case History:||(Application for extension of time to file an appeal out of time in an intended appeal from a judgment of the High Court of Kenya at Nakuru (D.M. Rimita) dated 13th September, 1994 in H.C.C.C. NO. 101 OF 1990)|
|Parties Profile:||Individual v Individual|
|History Docket No:||H.C.C.C. NO. 101 OF 1990)|
|History Judges:||David Maitai Rimita|
|Case Outcome:||Application allowed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
(CORAM: LAKHA, J.A. (IN CHAMBERS)
(CIVIL APPLICATION NO. NAI.175 OF 1996)
GEOFFREY CHEGE NUTHU..............................APPLICANT
AVERALLI & BROTHERS.............................RESPONDENTS
(Application for extension of time to file an appeal out of
time in an intended appeal from a judgment of the High
Court of Kenya at Nakuru (D.M. Rimita) dated 13th
H.C.C.C. NO. 101 OF 1990)
R U L I N G
This is an application under rule 4 of the Rules of this Court for an extension of time to file a notice of appeal and a record of appeal consequent upon the original appeal having been struck out as incompetent. The appeal was struck out on February 28, 1996 and the present application was made on March 29, 1996. I do not consider that this delay was long or inordinate. It seems to me that there was a mistake or oversight in failing to include the exhibits in the original record of appeal. Mr Mugaka for the respondent opposed the application. He sought to argue that on the merits the claim could not succeed and that the plaint is bad in law. The matters go to the merits of the applicant as I am not at this stage, required to consider those. I am also not persuaded that the omission was deliberate there being no material before me to justify such a conclusion.
Having regard to all the circumstances of the case I am satisfied that this is a fit and proper case for the exercise of my unfiltered discretion under rule 4 of the Rules of this Court.
Accordingly the application is allowed. Notice of appeal shall be filed within 7 days and the record of appeal shall be filed within 30 days thereafter. The applicant shall pay to the respondent the costs of this application.
Dated and delivered at Nakuru this 21st day of February, 1997.
JUDGE OF APPEAL
I certify that this is a true copy of the original.