[2021] KECA 321 (KLR)
The court found that while the applicant provided a reasonable explanation for the delay, there was a significant departure between the original prayers and the draft memorandum of appeal. The evidence indicated that the applicant had already been adequately compensated, and there was no arguable appeal....
Source-derived case information.
- Citation
- [2021] KECA 321 (KLR)
- Parties
- Applicant: Yunes Moraa Gichana; Respondent: Wakenya Pamoja Sacco Society Limited; Respondent: Cooperative Bank of Kenya
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E119 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Extension of Time, Appeals Process, Discretionary Powers, Delay Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yunes Moraa Gichana
Applicant
Wakenya Pamoja Sacco Society Limited
Respondent
Cooperative Bank of Kenya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided a reasonable explanation for the delay in filing the notice and record of appeal out of time.
- 2 Whether the applicant has an arguable appeal warranting the exercise of the court's discretion to extend time.
Ratio Decidendi
The court found that while the applicant provided a reasonable explanation for the delay, there was a significant departure between the original prayers and the draft memorandum of appeal. The evidence indicated that the applicant had already been adequately compensated, and there was no arguable appeal. Consequently, the court declined to exercise its discretion to extend the time for filing the notice and record of appeal.
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 declined.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
23 paragraphs
Gichana v Wakenya Pamoja Sacco Society Limited & another (Miscellaneous Application E119 of 2021) [2021] KECA 321 (KLR) (17 December 2021) (Ruling)
Neutral citation: [2021] KECA 321 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Miscellaneous Application E119 of 2021
A Mbogholi-Msagha, JA
December 17, 2021
Between
Yunes Moraa Gichana
Applicant
and
Wakenya Pamoja Sacco Society Limited
1st Respondent
Cooperative Bank of Kenya
2nd Respondent
(An application for extension of time to file notice and record of appeal out of time in an intended appeal against a judgment of the High Court of Kenya at Kisumu (Nduma,J) dated 17th December, 2020 In ELRC No. 367 OF 2011)
Ruling
1. By an application dated 17th June, 2021the applicant seeks leave to file Notice of Appeal and record of appeal out of time citing rule 4 of theCourt of Appeal Rules. The judgment in this matter was delivered on 17th December, 2020 and according to the supporting affidavit, the judgment was delivered in the absence of the applicant and without notice. It was not until may 21, 2021 that the judgment was read and explained to her by her advocate who had written a letter dated 14th April, 2021 inquiring about the judgement.
2. It is the applicant’s case that due to lock down in Nairobi following covid pandemic she was unable to give proper and timely instructions to her advocates which she eventually did on 4th June, 2021.
3. The orders sought by the applicant are discretionary and supposed to consider whether or not the delay if inordinate has been explained and whether or not the applicant has an arguable appeal. -see Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi Civil Application No. Nai 251 of 1997 and Mwangi vs. Kenya Airways Limited(2003) KLR 486.
4. There appears to be a reasonable explanation for the delay which may be acceptable to the court. However looking at the original prayers advanced by the applicant before the trial court, and relating the same to the awards made there is a marked departure in the draft Memorandum of Appeal presented by the applicant.
5. Available evidence in the records is that the applicant was adequately compensated. She may not be allowed to litigate her case afresh on appeal. There is no arguable appeal in this matter and therefore the application is declined with costs to the respondent.
DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF DECEMBER,2021A. MBOGHOLI MSAGHA........................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR