[2019] KECA 264 (KLR)
The court found that while the applicant was entitled to exclusion of time as per the Certificate of Delay, there was an unexplained delay between 12th April, 2019, when the proceedings were ready, and 15th August, 2019, when the application for extension of time was filed. The applicant failed to provide any...
Source-derived case information.
- Citation
- [2019] KECA 264 (KLR)
- Parties
- Applicant: George Owuor Olaka; Respondent: Paul K. Muruga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 99 of 2019
- Procedural Posture
- Civil Appeal / Application for Extension of Time to File Record and Memorandum of Appeal
- Outcome
- application dismissed with costs
- Judges
- JO Odek
- Legal Topics
- Extension of Time, Appeal Filing Deadlines, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Owuor Olaka
Applicant
Paul K. Muruga
Respondent
Procedural Posture
Civil Appeal / Application for Extension of Time to File Record and Memorandum of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the Record and Memorandum of Appeal out of time.
- 2 Whether the court should exercise its discretion to extend time for filing the appeal.
Ratio Decidendi
The court found that while the applicant was entitled to exclusion of time as per the Certificate of Delay, there was an unexplained delay between 12th April, 2019, when the proceedings were ready, and 15th August, 2019, when the application for extension of time was filed. The applicant failed to provide any explanation for this period of delay. In the absence of a satisfactory explanation, the court declined to exercise its discretion to extend time for filing the Record and Memorandum of Appeal. Consequently, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 15th August, 2019 is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
(CORAM: ODEK.JA. (IN CHAMBERS))
CIVIL APPEAL(APPLICATION) NO. 99 OF 2019 (UR 66/2019)
BETWEEN
GEORGE OWUOR OLAKA.................................................APPLICANT
AND
PAUL K. MURUGA...........................................................RESPONDENT
(Application to seek leave to file record & memorandum of appeal out of time from the ruling of the
High Court of Kenya at Kitale (Mwangi J) dated 29th May, 2017in ELC NO. 41 OF 2008)
****************
RULING
Before me is a Notice of Motion dated 15th August, 2019 seeking extension of time within which to file the Record and Memorandum of Appeal out of time.
The applicant filed a Notice of Appeal on 9th June, 2017 and which notice was filed within time. However, the Record of Appeal has not been filed today. In support of the instant application, it is urged that the delay in filing the Record of Appeal is due to delay in obtaining certified proceedings and judgment of the High Court.
A Certificate of Delay dated 2nd May, 2019 has been attached to the application. In the certificate, the period between 9th June, 2017 and 12th April, 2019 is excluded in the computation of time.
The instant application for extension of time was filed on 15th August, 2019. I have considered the application before me and the reason for delay that has been advanced.
The applicant has not explained the delay between 12th April, 2019 when the proceedings were ready and 15th August, 2019 when the instant application was filed.
In the absence of any explanation or reason for delay after the certificate of delay, I find that the instant application was filed after a delay that has not been explained.
Accordingly, the Notice of Motion dated 15th August, 2019 be and is hereby dismissed with costs. The applicant has not given any reason for delay to enable me exercise my discretion to extend time.
DATED at Eldoret this 14th day of October, 2019.
OTIENO ODEK
...................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR