CATHERINE KARL vs GUENTER OTTO KARL [1998] KECA 268 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: LAKHA, J.A. (IN CHAMBERS))

CIVIL APPLICATION NO. NAI. 152 OF 1998 (57/98UR)

BETWEEN

CATHERINE KARL .................................... APPLICANT

AND

GUENTER OTTO KARL ................................. RESPONDENT

(An intended appeal from part of the Ruling of the High Court of Kenya at Nairobi (Justice Hayanga) dated 19th September, 1997 in H.C.C.C. NO. 21 OF 1997) ***************

R U L I N G

This is an application for extension of time to file a Notice of Appeal and a record of appeal. The appeal was struck out on 12th June, 1998 and the application was filed on 19th June, 1998. There was, therefore, no delay in making this application. The starting point in the consideration of an application of this nature is rule 4 itself which makes no difference in the class of the application but makes justice of the case a paramount consideration. It is a principle of the administration of justice that disputes should be decided on merits insofar as this is possible, unless there is fraud, overreaching or delay or such grounds are present as may disentitle the applicant to the unfettered exercise of the Court's discretion.

Having carefully considered all the factors, I am satisfied that this is a fit and proper case for the exercise of my discretion. I do not see how I can say that the applicant is undeserving of the exercise of the Court's discretion. Accordingly, I order that the Notice of Appeal shall be filed within 3 days from today and the Record of Appeal within 14 days thereafter. The applicant shall pay to the respondent the costs of this application assessed at Shs. 2,500/= within 10 days failing which this application shall lapse as if the same had been dismissed.

Dated and delivered at Nairobi this 20th day of July, 1998.

A.A. LAKHA

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR