[2021] KECA 75 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the inordinate delay of 789 days in seeking extension of time to file a notice of appeal. The reasons advanced, including pursuing the matter in the wrong courts and only later realizing the correct forum, were deemed insufficient to...
Source-derived case information.
- Citation
- [2021] KECA 75 (KLR)
- Parties
- Applicant: Joshua Alumasi Aboyi; Respondent: Alfred Ivusa Laban; Respondent: Savala Secondary School
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application E35 of 2020
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- application struck out
- Judges
- JW Lessit
- Legal Topics
- Extension of Time, Notice of Appeal, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Alumasi Aboyi
Applicant
Alfred Ivusa Laban
Respondent
Savala Secondary School
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the inordinate delay of 789 days in seeking extension of time to file a notice of appeal.
- 2 Whether the application, having been brought under the wrong provisions of the law, properly invokes the jurisdiction of the Court of Appeal.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the inordinate delay of 789 days in seeking extension of time to file a notice of appeal. The reasons advanced, including pursuing the matter in the wrong courts and only later realizing the correct forum, were deemed insufficient to justify such a lengthy delay. Furthermore, the application was brought under the wrong provisions of the law, failing to properly invoke the jurisdiction of the Court of Appeal. Consequently, the court exercised its discretion to strike out the application, finding no merit in the reasons advanced for the delay or in the procedural approach taken by the applicant.
Court Disposition
application struck out
Orders
- The application for extension of time to file notice of appeal is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
Aboyi v Laban & another (Civil Application E35 of 2020) [2021] KECA 75 (KLR) (8 October 2021) (Ruling)
Neutral citation number: [2021] KECA 75 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Civil Application No. E35 of 2020
JW Lessit, JA
October 8, 2021
Between
Joshua Alumasi Aboyi
Applicant
and
Alfred Ivusa Laban
1st Respondent
Savala Secondary School
2nd Respondent
(An Application for extension of time to file Notice of Appeal out of time in an intended appeal against a ruling of the High Court in Kakamega (N.A. MATHEKA, J.) dated 10th October 2017)
Ruling
1. Even though this application seeks extension of time to file a Notice of Appeal before this court, it has been brought under the wrong provisions of the law. It invokes Sections 3 & 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules. The application was filed on 28th February, 2020, challenging the decision of the ELC Court delivered on the 10th October, 2017. This was 789 days after the date due for the filing of the said notice.
2. The reasons advanced why the notice of appeal was not filed in time are that the Applicant went to the wrong courts to challenge the impugned decision, and that he only realized when time had lapsed that he should have approached this court. The Applicant explained that he has been pursuing stay in different courts and had prepared all the documents for filing within the requisite time. He urges that the delay was not deliberate but out of unforeseen mistake.
3. Having considered the reasons advanced for the delay in bringing this application, I am not satisfied that the delay is adequately explained. The application has been made 789 days out of time. I find this a long and inordinate delay to bring the application by any standards.
4. In addition, the application has been brought under the wrong provisions of the law, and does not invoke the jurisdiction of this court.
5. Having considered the above factors, I find that for the reasons I have given above, the most appropriate order to make is to strike out the application with no order as to costs.
Orders accordingly.DATED & DELIVERED AT NAIROBI THIS 8THDAY OF OCTOBER, 2021J. LESIIT.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR