[2011] KECA 228 (KLR)
The court found that the applicant failed to provide a satisfactory or acceptable explanation for the nearly three-year delay in seeking extension of time to file the notice and record of appeal. The reasons advanced by the applicant were vague and did not justify the inordinate delay. The court emphasized that its...
Source-derived case information.
- Citation
- [2011] KECA 228 (KLR)
- Parties
- Applicant: Ahmed Ali Gure; Respondent: Daudi Sethe Diff
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 86 of 2011
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Appeal Procedure, Judicial Discretion, Delay in Filing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Ali Gure
Applicant
Daudi Sethe Diff
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient and acceptable reasons for the inordinate delay in seeking extension of time to file the notice and record of appeal.
- 2 Whether the court should exercise its discretion to extend time in the circumstances of this case.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory or acceptable explanation for the nearly three-year delay in seeking extension of time to file the notice and record of appeal. The reasons advanced by the applicant were vague and did not justify the inordinate delay. The court emphasized that its discretion to extend time must be exercised judiciously and in accordance with established principles, including the need for finality in litigation. Given the unexplained and excessive delay, and the absence of sufficient justification, the court declined to grant the extension sought.
Court Disposition
application dismissed
Orders
- The application for extension of time is disallowed.
- The respondent shall have the costs of the application.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: VISRAM, J.A (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 86 OF 2011 (UR.57/2011)
BETWEEN
AHMED ALI GURE..............................................................APPLICANT
AND
DAUDI SETHE DIFF..........................................................RESPONDENT
(An application for leave for extension of time to file and serve Notice of Appeal and Record of Appeal out of time from the Ruling of the High Court of Kenya at Nairobi (Ang’awa, J) dated 8th May, 2008
in
Civil Appeal No. 12 of 2003)
*****************
RULING
This is an application under Rule 4 of the Court of Appeal Rules for extension of time to file an appeal from the ruling and order of the superior court (Ang’awa, J) dated 8th May, 2008. The application is supported by an affidavit sworn by the applicant, Ahmed Ali Gure.
The ruling in the case before the superior court was delivered on 8th May, 2008, and a notice of appeal was indeed filed on time. However, it was subsequently withdrawn. The reasons for the withdrawal of the notice of appeal are not clear. The applicant simply says in his deposition that “the notice of appeal was withdrawn in good faith since I approached several institutions …”.
Having withdrawn the notice of appeal, the applicant went to slumber until 6th April, 2011 when this application was filed for extension of time. That is almost three years after the expiry of time for filing the notice of appeal. And his explanation for the delay? That he was “in and out of court corridors trying to have the court orders interpreted.” That says almost nothing, and cannot be accepted as a proper explanation for the three year delay.
I agree with the submissions of Mr. Marete, learned counsel for the respondent, that the delay herein is inordinate and unexplained.
Rule 4 of the Rules of this Court gives me unfettered discretion whether to extend time or not. However, that discretion has to be exercised judiciously, and in accordance with the principles set out in Leo Sila Mutiso vs Rose Hellen Wangari Mwangi– Civil Application No. Nai 251 of 1997 where this Court stated:
“It is now settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are first the length of the delay. Secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted and fourthly the degree of prejudice to the respondent if the application is granted”.
I have taken into account all the factors indicated above, including the fact that this is an old case that was filed in the superior court in 2001. All litigation should come to an end at some point, and so should this, at this point. To do otherwise would send the wrong message to the litigants – that it is all right to sleep on your rights and we will welcome you anytime you wake up! Clearly, the Rules of this Court must be followed, and the applicant herein has not provided me with sufficient justification to grant it the indulgence sought.
Accordingly, and for reasons outlined, I am of the view that this application has no merit, and the same is disallowed. The respondent shall have the costs of the application.
Dated and delivered at Nairobi this 17th day of June, 2011.
ALNASHIR VISRAM
..................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR