[2011] KEHC 3290 (KLR)
The court found that the delay of about four months in filing the appeal was inordinate and that the explanation provided by the applicant, namely the delay in obtaining certified copies of proceedings, was unsatisfactory. The court relied on precedent that certified copies are not necessary to file a competent...
Source-derived case information.
- Citation
- [2011] KEHC 3290 (KLR)
- Parties
- Applicant: Chloride Exide (K) Ltd.; Respondent: John Sarmwei Kiprotich
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 68 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application dismissed with costs
- Judges
- J Karanja
- Legal Topics
- Extension of Time, Appeals, Delay in Filing, Procedural Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chloride Exide (K) Ltd.
Applicant
John Sarmwei Kiprotich
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the appeal.
- 2 Whether the delay in filing the appeal was inordinate and excusable.
- 3 Whether the intended appeal is arguable and not frivolous.
Ratio Decidendi
The court found that the delay of about four months in filing the appeal was inordinate and that the explanation provided by the applicant, namely the delay in obtaining certified copies of proceedings, was unsatisfactory. The court relied on precedent that certified copies are not necessary to file a competent appeal. Furthermore, the applicant failed to demonstrate that the intended appeal was arguable and not frivolous. Consequently, the application for extension of time lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file an appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
MISC. CIVIL APPLICATION NO. 68 OF 2009
CHLORIDE EXIDE (K) LTD. ……………....…………. APPLICANT
VERSUS
JOHN SARMWEI KIPROTICH ………….....………RESPONDENT
R U L I N G
In the case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi – Civil Application No.251 of 1997 at Nairobi, the Court of Appeal set the guidelines for extension of time within which to file an appeal.
These are;-
(a)The period of delay,
(b)The reasons for the delay,
(c)Whether the appeal or intended appeal is arguable and is not frivolous,
(d)Whether the respondent would be unduly prejudiced.
Herein, the judgment sought to be appealed against was delivered on 28th October, 2008. This application was filed on 27th January 2009. This was a delay of about four months which was indeed inordinate. The reason or explanation for the delay is attributed to the court’s delay in supplying certified copies of the proceedings despite a formal request by the applicant’s previous advocate.
It is the applicant’s contention that the appeal could not be prepared without certified copies of the proceedings. This is the main and only reason for the delay in having the appeal filed within the prescribed time.
In the case of James Obando Vs. Isaiah Juma – Civil Appeal No. 222 of 2008 at Kisumu, the Court of Appeal stated that copies of proceedings are not necessary for purposes of mounting a competent appeal. The reason for the delay is therefore unsatisfactory.
Besides, the applicant has not demonstrated that his appeal is arguable and that it is not frivolous.
All in all, this application is devoid of merit. It must and is hereby dismissed with costs.
Ordered accordingly.
J. R. KARANJA
JUDGE
(Read and signed this 14th day of April 2011 in the presence of Mr. Kiboi for respondent and Mr. Songok holding brief for Applicant).