[1986] KECA 5 (KLR)
The court held that the applicant had failed to produce a certificate of delay, which is a prerequisite for the exclusion of time under rule 81 of the Court of Appeal Rules. Even if the matter were considered in the applicant's favour, the proceedings were ready for collection by May 24, 1985, and the 60-day period...
Source-derived case information.
- Citation
- [1986] KECA 5 (KLR)
- Parties
- Applicant: Caleb H Akwera; Respondent: East African Consultants
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 65 of 1985
- Procedural Posture
- Civil Application / Application for Extension of Time to File Appeal
- Outcome
- application dismissed with costs
- Judges
- ARW Hancox
- 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
Caleb H Akwera
Applicant
East African Consultants
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant is entitled to an extension of time to file the record of appeal.
- 2 Whether the absence of a certificate of delay precludes the operation of rule 81 for exclusion of time.
- 3 Whether the delay in filing the appeal is excusable under the court's discretionary powers.
Ratio Decidendi
The court held that the applicant had failed to produce a certificate of delay, which is a prerequisite for the exclusion of time under rule 81 of the Court of Appeal Rules. Even if the matter were considered in the applicant's favour, the proceedings were ready for collection by May 24, 1985, and the 60-day period for filing the appeal would have expired by July 25, 1985. The application for extension of time was filed after this period, and the delay was found to be excessive and unexplained. The court exercised its discretion under rule 4 and declined to grant the extension, emphasizing that the delays were already far too long and not supported by the necessary documentation.
Court Disposition
application dismissed with costs
Orders
- The notice of motion dated July 30, 1985 is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Hancox, J A ( In Chambers )
CIVIL APPLICATION NO NAI 65 OF 1985
(In the matter of an intended appeal)
BETWEEN CALEB H AKWERA ………………………………………………..…….. APPLICANT
AND
EAST AFRICAN CONSULTANTS ……………………….………….. RESPONDENT
(Application for extension of time to file an intended appeal from a Ruling of the High Court of Kenya at Nairobi (Platt, J ) dated May 3, 1983 In
High Court Civil Application No 1900 of 1974)
__________________
RULING
No certificate of delay has been produced, and therefore the exclusion period provided for in rule 81 of this court’s Rules cannot operate. But even taking the matter at its highest in favour of the applicant the proceedings were collected by Mrs Khaminwa of Messrs Khaminwa & Khaminwa on June 11, 1985, according to her affidavit of February 13, 1986. Accordingly the record and memorandum of appeal, (the notice for which was filed as far back as May 16, 1983, and the action itself begun in 1974 ) were due to be filed at the latest by the August 10, 1985. The notice of motion seeking enlargement of time was filed on July 30, 1985.
However, according to the court letter of May 24, last the proceedings and judgment were ready for collection on that date. So if the 60 day period were to be reckoned from then, allowing for 2 days for delivery in Nairobi, it would have expired on July 25, 1985.
I am afraid the delays in this case have already been far too long even after a second adjournment before me the necessary certificate to support the foregoing has not been forthcoming.
Exercising my discretion under rule 4, I am not prepared to extend the time for filing the record of appeal for what in effect is well over 2 years after it was due.
The Notice of motion dated July 30, 1985 is accordingly dismissed with costs.
Dated at Nairobi this 13th day of March, 1986.
ARW Hancox
Judge of Appeal
I certify that this is a true copy of the original.
DEPUTY REGISTRAR