[2002] KECA 260 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the delay in filing the notice and record of appeal. The applicant blamed his previous advocate but did not present any evidence from the advocate to substantiate this claim. Furthermore, the applicant did not disclose when he became...
Source-derived case information.
- Citation
- [2002] KECA 260 (KLR)
- Parties
- Applicant: Alexander Nyakwaka; Respondent: Masiliana Awiti Onyuka
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 179 of 2001
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeal Procedure, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Alexander Nyakwaka
Applicant
Masiliana Awiti Onyuka
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the notice and record of appeal out of time.
- 2 Whether the applicant's explanation for the delay, blaming his advocate, is credible and supported by evidence.
- 3 Whether the court should exercise its discretion to extend time in the circumstances.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the delay in filing the notice and record of appeal. The applicant blamed his previous advocate but did not present any evidence from the advocate to substantiate this claim. Furthermore, the applicant did not disclose when he became aware of the decision of the superior court, which is a critical factor in the exercise of the court's discretion to extend time. The court concluded that, in the absence of credible evidence and a clear explanation for the delay, there was no basis to exercise its discretion in favour of the applicant. The application for extension of time was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to lodge and serve the notice of appeal and record of appeal out of time is dismissed with costs.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEALAT KISUMU(CORAM: KEIWUA, J.A. (IN CHAMBERS))
CIVIL APPLICATION NO. NAI. 179 OF 2001 (KSM.29 OF 2001)BETWEEN ALEXANDER NYAKWAKA ...........................................APPLICANT
ANDANDMASILIANA AWITI ONYUKA ...............................RESPONDENT
(Application for extension of time within which to lodge and serve Notice of Appeal and Record of Appeal out of time from the Ruling of the High Court of Kenya at Kisii (Justice Waweru) dated 9th June, 2000 inH.C.C.C. NO. 418 OF 1996) *********************
R U L I N G
This is an application under rule 4 of the Court's Rules. It seeks extension of time within which to lodge a Notice of Appeal and Record of Appeal. The reason for the failure to lodge the Notice of Appeal and Record of Appeal in time is that the applicant's previous advocate failed to attend Court and that led to the case being decided in favour of the respondent and without that eventuality being communicated to the applicant. The decision complained of was delivered on June 9, 2000 in the applicant's absence whom the learned Judge says was served but did not appear at the hearing of the application. The applicant did not also file any grounds opposing the application.
Though the applicant tends to blame his advocate for these failures, nothing has been heard from the said advocate to show that what is heaped on him by the applicant is correctly stated. I have no way of verifying all that is urged by the applicant. The respondent opposes the application and states that it was the applicant's fault that no notice of appeal or record of appeal was filed in time. I agree with this submission.
To begin with, the applicant does not even attempt to show or disclose when he became aware of the decision of the superior court which is a relevant matter on which I have to exercise my discretion on whether to extend time or not. Accordingly, I dismiss the application with costs.
Dated and delivered at Kisumu this 11th day of March, 2002. M. Ole KEIWUA
..............................
JUDGE OF APPEALI certify that this is a true copy of the original.
DEPUTY REGISTRAR