[2018] KECA 724 (KLR)

[2018] KECA 724 (KLR)

The court found that the applicants failed to provide a sufficient and satisfactory explanation for the four-month delay in filing the notice and record of appeal. The reason given—a mistake by an unidentified staff member in the advocate's office—was unsupported by evidence such as receipts or a credible account of...

Source-derived case information.

Citation
[2018] KECA 724 (KLR)
Parties
Applicant: Diocese of Kisii Registered Trustee; Applicant: Reverend Joseph Mairura Okemwa; Applicant: Sister Rosa Construction Company; Respondent: Hezekiah Mairura Ongeri; Respondent: Kennedy Moruri Mokua
Court
Court of Appeal
Court Station
Court of Appeal at Kisumu
Jurisdiction
Kenya
Case Number
Miscellaneous Application 37 of 2017
Procedural Posture
Miscellaneous Application / Application for Extension of Time to File Notice and Record of Appeal
Outcome
application dismissed with costs
Judges
GG Okwengu
Legal Topics
Extension of Time, Appeals Process, Judicial Discretion
Source Language
en
Civil Procedure Extension of Time Appeals Process Judicial Discretion

Source-derived case record

Summary, issues, holding and outcome

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Parties

Diocese of Kisii Registered Trustee

Applicant

Reverend Joseph Mairura Okemwa

Applicant

Sister Rosa Construction Company

Applicant

Hezekiah Mairura Ongeri

Respondent

Kennedy Moruri Mokua

Respondent

Procedural Posture

Miscellaneous Application / Application for Extension of Time to File Notice and Record of Appeal

Legal Issues

  1. 1 Whether the applicants have provided sufficient reason for the delay in filing the notice and record of appeal out of time.
  2. 2 Whether the intended appeal has any arguable grounds or prospects of success.
  3. 3 Whether the court should exercise its discretion under Rule 4 of the Court of Appeal Rules in favour of the applicants.

Ratio Decidendi

The court found that the applicants failed to provide a sufficient and satisfactory explanation for the four-month delay in filing the notice and record of appeal. The reason given—a mistake by an unidentified staff member in the advocate's office—was unsupported by evidence such as receipts or a credible account of oversight. Furthermore, the applicants did not provide a draft memorandum of appeal or identify any arguable grounds, making it impossible for the court to assess whether the intended appeal was frivolous or had prospects of success. In the absence of a proper basis for exercising judicial discretion in their favour, the application for extension of time was dismissed.

Court Disposition

application dismissed with costs

Orders

  • The application for leave to file a notice of appeal and record of appeal out of time is dismissed with costs.