[1986] KEHC 53 (KLR)
The court found that the applicant 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 applicant's version of events was accepted, the record and memorandum of appeal were due by August 10, 1985, but the application for...
Source-derived case information.
- Citation
- [1986] KEHC 53 (KLR)
- Parties
- Applicant: Caleb H Akwera; Respondent: East African Consultants
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 65 of 1985
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application dismissed
- 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
Miscellaneous Application / Ruling on 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 found that the applicant 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 applicant's version of events was accepted, the record and memorandum of appeal were due by August 10, 1985, but the application for extension was filed only on July 30, 1985, after significant delay. The proceedings and judgment were ready for collection on May 24, 1985, and the 60-day period for filing would have expired on July 25, 1985. The court held that the delays were excessive and unjustified, and that the applicant had not provided sufficient explanation or the necessary supporting documentation....
Court Disposition
application dismissed
Orders
- The notice of motion dated July 30, 1985 is dismissed with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
INN THE COURT OF APPEAL AT NAIROBI
CIVIL MISCELLANEOUS APPLICATION 65 OF 1985
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
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