[2022] KECA 691 (KLR)
The Court found that the applicant's explanation for the delay—waiting for the High Court to determine her review application—was not a plausible or sufficient reason for failing to file the appeal within time. The applicant made an election to pursue review rather than appeal, and the subsequent delay in the High...
Source-derived case information.
- Citation
- [2022] KECA 691 (KLR)
- Parties
- Applicant: Joyce Opisa Amanaka; Respondent: Christine Nafula Amanaka
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application E031 of 2022
- Procedural Posture
- Civil Application / Single Judge Ruling on Application for Extension of Time to Appeal
- Outcome
- application dismissed with costs
- Judges
- F Tuiyott
- Legal Topics
- Extension of Time, Appeals Out of Time, Succession Disputes, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Opisa Amanaka
Applicant
Christine Nafula Amanaka
Respondent
Procedural Posture
Civil Application / Single Judge Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the inordinate delay in filing the appeal out of time.
- 2 Whether the High Court's delay in determining the review application constitutes a valid ground for extension of time.
- 3 Whether the discretion to extend time should be exercised in favour of the applicant given the circumstances.
Ratio Decidendi
The Court found that the applicant's explanation for the delay—waiting for the High Court to determine her review application—was not a plausible or sufficient reason for failing to file the appeal within time. The applicant made an election to pursue review rather than appeal, and the subsequent delay in the High Court's determination of the review application did not justify a delay of thirty-three months in seeking leave to appeal out of time. The Court held that the delay was inordinate and the reasons advanced were not convincing, thus declining to exercise its discretion to extend time.
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated December 24, 2021 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
Amanaka v Amanaka (Civil Application E031 of 2022) [2022] KECA 691 (KLR) (22 July 2022) (Ruling)
Neutral citation: [2022] KECA 691 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Civil Application E031 of 2022
F Tuiyott, JA
July 22, 2022
Between
Joyce Opisa Amanaka
Applicant
and
Christine Nafula Amanaka
Respondent
(Being an application for expansion of time to allow the Applicant herein to file an appeal from the Judgment/Orders of the High Court of Kenya at Kakamega (William Musyoka, J) dated 10th April, 2019 in Succession Cause No. 534 OF 2016 Succession Cause 534 of 2016 )
Ruling
[1]Sitting as a single judge on behalf of the Court, I am asked to consider the Notice of Appeal dated December 24, 2021 in which Joyce Opisa Amanaka (the applicant) seeks leave of this Court to extend time for the filing of an appeal out of time. The motion is said to be brought under Articles 22 and 23 of the Constitution.
[2]In an affidavit sworn on even date, the applicant deposes that she is the 1st widow of Samwel Amanaka Ng’onze (deceased) and that in a verdict delivered on 10th April, 2019, Hon. Musyoka, J in Succession Cause No. 534 of 2016 made a finding that her house was entitled to 60% of the deceased's estate while that of the respondent to 40%. That the Court then erroneously ruled that the landed property be registered in joint proprietorship of the two.
[3]She states that she was unhappy with that order and filed an application for its review on 8th May, 2019. She deposes that it is now more than 33 months and the Judge has not heard the application. She thinks that the Judge is avoiding hearing and determining the case.
[4]She states that the failure to file the appeal on time is predicated on the failure of the High Court to determine the review matter expeditiously and that the delay was not intentional.
[5]I have seen no response to the application before me.
[6]I am asked to exercise my discretion to extend time. That discretion must be exercised judiciously guided by the principles often restated by this Court. See for example in Leo Sila Mutiso v Rose Hellen Wangari Mwangi – Civil Application No. Nai 251 of 1997 where this Court observed:“It is now settled that the decision whether to extend the time for appealing is essentially discretionary. It is also well stated 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 reasons 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.”
[7]Implicit in the explanation given by the applicant for the delay is that she had two alternatives of challenging the High Court judgment of April 10, 2019. By review to the same court and by an appeal to this Court. She made her election and chose to apply for review before the High Court. She seems disappointed that the matter is taking rather long before it is determined.
[8]This Court is unable to tell why there has been delay in the hearing of the review application before the High Court. The applicant took her chance in moving the High Court for review and it cannot be a good reason to come to this Court thirty three (33) months later with a plea to extend time simply because the matter did not move as quickly as she had hoped. The delay is inordinate and the explanation given for delay not plausible.
[9]I am afraid I am unable to accede to the request made in the Notice of Motion dated December 24, 2021 and I do hereby dismiss it with costs.
DATED AND DELIVERED AT KISUMU THIS 22ND DAY OF JULY, 2022. F. TUIYOTT...............JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR