[2001] KECA 290 (KLR)
The court found that the applicant failed to provide any evidence or specific information as to when the stamped and signed Notice of appeal was collected from the superior court's registry. In the absence of such evidence, and with no indication that the court file went missing after the filing date, the applicant...
Source-derived case information.
- Citation
- [2001] KECA 290 (KLR)
- Parties
- Applicant: Christopher N. Kinuthia (as the legal representative of the estate of Kinuthia Gitura Gikonyo); Respondent: David K. Munyua
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 23 of 2001
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time to Serve Notice of Appeal and for Leave to File Supplementary Affidavit
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Service of Notice, Court of Appeal Rules, Discretionary Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher N. Kinuthia (as the legal representative of the estate of Kinuthia Gitura Gikonyo)
Applicant
David K. Munyua
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time to Serve Notice of Appeal and for Leave to File Supplementary Affidavit
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in serving the Notice of appeal on the respondent.
- 2 Whether the court should exercise its discretion to grant an extension of time for service of the Notice of appeal.
Ratio Decidendi
The court found that the applicant failed to provide any evidence or specific information as to when the stamped and signed Notice of appeal was collected from the superior court's registry. In the absence of such evidence, and with no indication that the court file went missing after the filing date, the applicant did not discharge the burden of explaining the delay. The court therefore declined to exercise its discretion in favour of the applicant and dismissed the application for extension of time to serve the Notice of appeal out of time.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to serve the Notice of appeal is dismissed with costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL
AT NAKURU
CORAM: KEIWUA J.A (IN CHAMBERS) CIVIL APPLICATION NO. NAI 23 OF 2001 (NAK 5/2001
BETWEEN
CHRISTOPHER N. KINUTHIA (as the legal representativeof the estate of Kinuthia Gitura Gikonyo).............. APPLICANT AND DAVID K. MUNYUA ..................................... RESPONDENT
(An application for extension of time within which theintended appellant should serve the notice of appealand for leave to file a supplementary affidavit) in H.C.C.C NO. 275 OF 2000) ***************** R U L I N G
This is an application for extension of time within which to serve a copy of the Notice of appeal on the respondent as required by rule 76(1) of the Court of Appeal Rules. The Notice of appeal was filed in the superior court on November 23, 2000 and signed the same day by the Deputy Registrar. The appellant's clerk says he was instructed to return on 24. 11. 00 to the superior court's registry to collect stamped copies of the Notice of appeal.
The clerk appears silent as to when he returned to the registry for his copies. He is also silent as to the date he collected those copies from the superior court's registry. The clerk only says he was unable to collect those stamped copies on time and that caused delay in service of the Notice of appeal on the respondent. The respondent has drawn my attention to the fact that the appellant had attached a copy of the filed and signed Notice of appeal to his application for injunction filed on 16. 1.2001 in this Court. The appellant has omitted to disclose when those copies of the Notice of appeal were collected. That information would have enabled me to decide whether the applicant is entitled to the exercise of my discretion in his favour. In the absence of any evidence that the file went missing after November 23, 2000 and in the absence of any information by the applicant as to when he collected the stamped and signed Notice of appeal, I am not inclined to grant the applicant leave to serve the Notice of appeal out of time and I therefore dismiss the application with costs.
Dated and delivered at Nakuru this 24th day of September, 2001.
M. OLE KEIWUA .................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR