[1999] KECA 141 (KLR)
The court found that the applicant failed to provide any material or sufficient reason to justify the exercise of discretion to extend time for filing the record of appeal. The applicant's reliance on waiting for a certificate of delay was not supported by the rules, which are clear and unambiguous in not allowing...
Source-derived case information.
- Citation
- [1999] KECA 141 (KLR)
- Parties
- Applicant: Francis Kihonge Ng'ang'a; Respondent: Kenya Commercial Finance Company Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 208 of 1998
- Procedural Posture
- Civil Application / Application for Extension of Time to File Record of Appeal
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Appeal Procedure, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kihonge Ng'ang'a
Applicant
Kenya Commercial Finance Company Limited
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient grounds for extension of time to file the record of appeal.
- 2 Whether waiting for a certificate of delay constitutes a valid reason for delay under the applicable rules.
Ratio Decidendi
The court found that the applicant failed to provide any material or sufficient reason to justify the exercise of discretion to extend time for filing the record of appeal. The applicant's reliance on waiting for a certificate of delay was not supported by the rules, which are clear and unambiguous in not allowing such an extension. The court emphasized that judicial discretion must be exercised on the basis of adequate material, and in the absence of such material and given the inordinate delay, the application could not succeed.
Court Disposition
application dismissed
Orders
- The application for extension of time is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: LAKHA, J.A. (IN CHAMBERS)) CIVIL APPLICATION NO. NAI. 208 OF 1998 BETWEEN
FRANCIS KIHONGE NG'ANG'A ............................APPLICANT AND KENYA COMMERCIAL FINANCE COMPANY LIMITED .............RESPONDENT
(Application for extension of time from a Ruling of the High Court of Kenya at Nairobi (Justice Ole-Keiwua) dated 9th March, 1998 in H.C.C.C. NO. 1064 OF 1996) *************** R U L I N G
This is an application underrule 4of the Rules of this Court seeking an extension of time for the filing of the record of appeal from the ruling of the superior court given on 9 March, 1998 whereby the applicant's defence was struck out. The Notice of Appeal was filed within the prescribed time. An application for copies of proceedings (copied to the other side) was made on 10 March, 1999 and these were collected on 8 May, 1998 . The last day, therefore, for the filing of the appeal, as Mrs. Ngugi concedes and, rightly in my view, was 7 July, 1998 . Yet no appeal was filed by then.
This application was made on 21 August, 1998.
When pressed, Mrs. Ngugi submitted that she was waiting for the Certificate of Delay. She, however, read the rule 81 and freely and frankly agreed that there was no ambiguity in the rule. Nor was it capable of a misinterpretation. It did not extend to certificate of delay.
In the circumstances, I see no mistake. None was alleged either in the Notice of Motion or in the supporting affidavit.
Mrs. Ngugi, however, strongly urged that the discretion under rule 4is unfettered. This is true. But like all discretion it must be judicially exercised. Here, there is no material before me on which I can base an exercise of my discretion in favour of the applicant. Nor do I think, having regard to the inordinate delay already occasioned, that this is a fit and proper case for the exercise of my discretion which I decline to exercise.
Accordingly, I dismiss the application but make no order as to costs.
Dated and delivered at Nairobi this 14th day of October, 1999.
A.A. LAKHA
.....................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR