[1999] KECA 152 (KLR)
The court found that the applicant delayed for over two years and eight months in making the application for extension of time to file the appeal, and that even after receiving notification from the Registrar, there was a further unexplained delay of about a month and a half before the application was filed. The...
Source-derived case information.
- Citation
- [1999] KECA 152 (KLR)
- Parties
- Applicant: Evans Obala Onyango; Respondent: The International Centre of Insect Physiology and Ecology
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 184 of 1999
- Procedural Posture
- Civil Application / Application for Extension of Time to File Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Process, Inordinate Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Obala Onyango
Applicant
The International Centre of Insect Physiology and Ecology
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the record of appeal out of time.
- 2 Whether the court should exercise its discretion to grant an extension of time to file the appeal.
Ratio Decidendi
The court found that the applicant delayed for over two years and eight months in making the application for extension of time to file the appeal, and that even after receiving notification from the Registrar, there was a further unexplained delay of about a month and a half before the application was filed. The applicant failed to provide any explanation for these delays. The court held that, in the absence of any explanation, it could not exercise its discretion to grant the extension. The rule is that where there is no explanation, there can be no indulgence. Accordingly, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file the record of appeal out of time is dismissed with costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: LAKHA, J.A. (IN CHAMBERS))
CIVIL APPLICATION NO. NAI. 184 OF 1999
BETWEEN
EVANS OBALA ONYANGO ........................................APPLICANT AND THE INTERNATIONAL CENTRE OF INSECT PHYSIOLOGY AND ECOLOGY ...............................RESPONDENT
(Application for leave to file an intended appeal out of time from a Judgment of the High Court of Kenya at Nairobi (Ringera, J.) dated 25th September, 1996 in H.C.C.C. NO. 114 OF 1995) ************* R U L I N G
This is an application by the unsuccessful plaintiff under rule 4 of theRules of this Court (the Rules) for an extension of time to file the Record of appeal out of time, the notice of appeal having been filed within the prescribed time.
The Judgment and decree of the superior court (Ringera, J.) the subject of the intended appeal was given on 25 September, 1996. The application for copies of proceedings and judgment was made on 25 September, 1996 but it was not copied to the respondent in terms ofrule 81 of the Rules. Accordingly, the appeal had to be filed within sixty days from the date of the Notice of Appeal i.e. 25 September, 1996 and such last date was 24 November, 1996. The papers as per the letter from the Registrar dated 13 April, 1999 were then ready. The present application was not filed until 20 July, 1999.
It appears to me that there has been inordinate delay in making this application. It was not made until after two years and eight months from the last day for the filing of the appeal. And in fact it took the applicant about three months to file the present application after he received the papers. Assuming that notification from the Registrar was received as the applicant's advocate submitted on 8th June, 1999, it took about a month and a half to make the application. All these delays have remained unexplained.
In these circumstances and, in the absence of any explanation for the delay, I decline to exercise my discretion in favour of the applicant. The rule is that where there is no explanation there can be no indulgence. In the result, the application is dismissed with costs.
Dated and delivered at Nairobi this 1st day of November, 1999.
A.A. LAKHA
..................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR