[1997] KECA 259 (KLR)
The court exercised its discretion under Rule 4 of the Court of Appeal Rules, finding that although there was no explanation for the delay prior to instructions being given to the applicant's advocate, the delay was not inordinate. The absence of opposition from the respondent and the lack of likely injustice to the...
Source-derived case information.
- Citation
- [1997] KECA 259 (KLR)
- Parties
- Applicant: Archdiocese of Kisumu; Respondent: Phoebe Atieno Nyagudi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 24 of 1997
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- Application allowed. Extension of time granted.
- 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
Archdiocese of Kisumu
Applicant
Phoebe Atieno Nyagudi
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 should be granted an extension of time to file and serve a notice of appeal and record of appeal out of time.
- 2 Whether the delay in filing the notice of appeal was inordinate or excusable.
Ratio Decidendi
The court exercised its discretion under Rule 4 of the Court of Appeal Rules, finding that although there was no explanation for the delay prior to instructions being given to the applicant's advocate, the delay was not inordinate. The absence of opposition from the respondent and the lack of likely injustice to the respondent further supported the grant of the application. The court therefore extended the time for filing the notice of appeal by 10 days and the record of appeal within 30 days thereafter.
Court Disposition
Application allowed. Extension of time granted.
Orders
- Time to file notice of appeal extended by 10 days from the date of this ruling.
- Time to file record of appeal extended by 30 days thereafter.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU CORAM: BOSIRE, AG. J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 24 OF 1997
BETWEEN
ARCHDIOCESE OF KISUMU ...................................APPLICANT AND PHOEBE ATIENO NYAGUDI ..................................RESPONDENT
(An application for extension of time to lodge and serve notice of appeal and memorandum and record of appeal from the decision and orders of the High Court of Kenya at Kisumu (Justice Wambilyangah) dated 9th April, 1996 in H.C.C.C. NO. 287 OF 1991) **********************
R U L I N G
This is an application under rule 4 of the Rules of this Court for an order extending time within which to file and serve a notice of appeal out of time and thereafter a record of appeal of an intended appeal against the decision of the Superior Court in its Civil Case No. 289 of 1991.
Mr. Menezes has sworn the affidavit in support of the application and has fully set out the reasons for the delay in filing the notice of appeal timeously. Although there is no explanation given regarding the delay prior to instructions being given to Mr. Menezes, this Court has unfettered discretion to extend the time provided that the delay is not inordinate. Moreover, Mr. Aluoch for the respondent does not oppose the application, properly so in my view considering that no injustice is likely to result to his client. I grant the orders sought and extend the time within which to file a notice of appeal by 10 days and a record of appeal within 30 days thereafter. The costs of this application to the respondent assessed at KShs.2,000/=.
Dated and delivered at Kisumu this 11th day of March, 1997.
S. E. O. BOSIRE
...................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR