[2002] KECA 264 (KLR)
The court dismissed the application for extension of time on the basis that the applicant failed to provide sufficient material to justify the exercise of the court's discretion. The only document filed in support of the application was an affidavit, which the court found to be too scanty to address the established...
Source-derived case information.
- Citation
- [2002] KECA 264 (KLR)
- Parties
- Applicant: Duncan Gateru; Respondent: James Ruo Waithaka
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 200 of 2001
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal Out of Time
- Outcome
- application dismissed with costs to the respondent
- Judges
- E Owuor
- Legal Topics
- Extension of Time, Appeals Process, Discretionary Powers, Delay in Filing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Gateru
Applicant
James Ruo Waithaka
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient material to justify the exercise of the court's discretion to extend time for filing a notice and record of appeal out of time.
- 2 What are the established principles guiding the grant of extension of time in appellate matters.
Ratio Decidendi
The court dismissed the application for extension of time on the basis that the applicant failed to provide sufficient material to justify the exercise of the court's discretion. The only document filed in support of the application was an affidavit, which the court found to be too scanty to address the established principles for granting an extension of time. The court reiterated that the exercise of discretion in such matters requires adequate evidence addressing the length and reason for delay, prospects of success, and potential prejudice to the respondent. In the absence of such material, the court could not grant the extension sought.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for extension of time to file notice and record of appeal out of time is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OWUOR , J.A (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 200 OF 2001
BETWEEN
DUNCAN GATERU ...................................................APPLICANT
AND
JAMES RUO WAITHAKA ....................................RESPONDENT
(Application for extension of time to file Notice and record of appeal out of time from the ruling of the High Court of Kenya at Nairobi (Mr. Justice Etyang) dated 22nd May, 2001 in H.C. P & A NO. 1801 OF 1994) ................
R U L I N G
Prior to the hearing of this application and before counsel for the applicant made his submissions, I intimated to him that the material he had on record was in my view not sufficient for the purpose of determining the application. He nevertheless went ahead and argued the application. The submissions made to me subsequently did not advance the application's position any further. In the result, I am unable to exercise my unfettered discretion granted to me underrule (4) of the Rules of this Court, which Rule, this application has been brought, on the ground that the material upon which the application is based is too scanty to enable me to consider whether or not to grant the extension sought, for time to file a Notice of appeal and record of appeal out of time on the established principle. SeeLeo Sila Mutiso V Rose Hellen Wangari MwangiC. Application No. Nai. 255 of 1997 (unreported):
"It is now well settled that the decision is essentially discretionary. It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are first the length of delay. Secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted, and fourthly, the degree of "prejudice' to the respondent if the application is granted".
To my mind the affidavit file herein, being the only document filed to support the application, does not provide sufficient material upon which I can determine the issue set above. The application is therefore dismissed with costs to the respondent.
Made and delivered at Nairobi this 8th day of February, 2002.
E. OWUOR
……………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR