[2002] KECA 104 (KLR)
The court found that the delay in filing the Notice of Appeal and Record of Appeal was not inordinate and that the applicant had provided a satisfactory explanation for the delay, namely his relocation and the resulting difficulty in giving instructions. The court was satisfied that sufficient cause had been shown...
Source-derived case information.
- Citation
- [2002] KECA 104 (KLR)
- Parties
- Applicant: Amos Ndung'u; Respondent: Vincent Niva Nyongesa
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 96 of 2002
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals Process, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amos Ndung'u
Applicant
Vincent Niva Nyongesa
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 cause for the delay in filing the Notice of Appeal and Record of Appeal.
- 2 Whether the court should exercise its discretion to grant leave to file the appeal out of time.
Ratio Decidendi
The court found that the delay in filing the Notice of Appeal and Record of Appeal was not inordinate and that the applicant had provided a satisfactory explanation for the delay, namely his relocation and the resulting difficulty in giving instructions. The court was satisfied that sufficient cause had been shown and therefore exercised its discretion in favour of the applicant, granting leave to file the appeal out of time.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to lodge his appeal out of time.
- The notice of appeal shall be filed within 7 days of this ruling.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
CORAM: TUNOI, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 96 OF 2002 (KSM.10/02)
BETWEEN AMOS NDUNG'U .................................................APPLICANT
AND VINCENT NIVA NYONGESA ...............................RESPONDENT
R U L I N G
This is an application seeking leave to extend time for filing the Notice of Appeal and the Record of Appeal. It is brought under rule 4 of the Rules of this Court.
The learned Judge of the superior court delivered the judgment the subject of the intended appeal on 22nd February, 2002, some two years after the trial was concluded. The applicant could not be traced immediately to give instructions as he had relocated to a distant rural market centre. However, this application was mounted on 22nd April, 2002. The delay in setting in motion the procedures of appeal is not inordinate and has been explained to my satisfaction. I will, therefore, exercise my discretion in favour of the applicant. I grant the application as prayed. Leave is granted to the applicant to lodge his appeal out of time. The notice of appeal shall be filed within 7 days hereof and the record of appeal shall be lodged 21 days after the service of the Notice upon the respondent. The costs of this application shall be in the intended appeal in any event.
Dated and delivered at Kisumu this 28th day of November, 2002.
P. K. TUNOi
JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR