[2001] KECA 325 (KLR)
The court found that the applicant had not provided any good or satisfactory reason for the inordinate delay in filing the notice of appeal or for the lack of diligence in prosecuting the matter. The subject matter of the appeal was considered trivial, involving a small decretal sum and no serious point of law. The...
Source-derived case information.
- Citation
- [2001] KECA 325 (KLR)
- Parties
- Applicant: Grace Mwangi; Respondent: David Kahira Mungai
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 125 of 1999
- Procedural Posture
- Civil Appeal / Application for Extension of Time to File Notice of Appeal and Admission of Appeal Out of Time
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Extension of Time, Notice of Appeal, Laches, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Mwangi
Applicant
David Kahira Mungai
Respondent
Procedural Posture
Civil Appeal / Application for Extension of Time to File Notice of Appeal and Admission of Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reasons for extension of time to file the notice of appeal out of time.
- 2 Whether the appeal should be admitted out of time despite procedural breaches and delay.
Ratio Decidendi
The court found that the applicant had not provided any good or satisfactory reason for the inordinate delay in filing the notice of appeal or for the lack of diligence in prosecuting the matter. The subject matter of the appeal was considered trivial, involving a small decretal sum and no serious point of law. The court emphasized that litigation must come to an end and that the applicant's conduct, including filing the appeal without leave and in breach of the rules, did not warrant the exercise of the court's discretion in her favour. Consequently, the application for extension of time and admission of the appeal out of time was dismissed.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application is dismissed with costs to the respondent assessed at Shs.5,000/=.
- Costs must be paid within 10 days, failing which execution to issue.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL NAKURU (CORAM: TUNOI, J.A (IN CHAMBERS) CIVIL APPEAL (APPLICATION) NO. 125 OF 1999 BETWEEN
GRACE MWANGI .........................................APPLICANT AND DAVID KAHIRA MUNGAI ..................................RESPONDENT(Application for extension of time to file Notice of appeal out of time in an intended appeal against the Judgment of the High Court of Kenya at Nakuru (Lady Justice Nambuye) dated 10th May, 1994 in H.C.C.C NO. 2 OF 1994) ************* R U L I N G
Two prayers are sought in this application. One, that the Notice of Appeal filed on 24th September, 1998 be deemed to have been filed and served in time, and; two, that Civil Appeal No. 125 of 1999 be admitted out of time. In my view, I think, the applicant does not deserve my indulgence. There are no good reasons why I should exercise my discretion in her favour. There are good reasons for me so to hold. For example, the subject matter of the appeal is, indeed to say, trivial. The decretal sum involved is not much. Further, there is no serious point of law involved. Must the litigation be prolonged unnecessarily? Not so. It must come to an end.
The applicant has been guilty of laches all the way through since judgment was pronounced on 10th May, 1994. The application and the appeal so lodged have not been handled diligently. Though the Notice of Appeal was struck out on 22nd September, 1998, this application was only filed on 7th September, 2000. No explanation has been given to my satisfaction as to why it took so long to perfect the Notice. Even though the appeal has been filed, this was done without leave and in blatant breach of the Rules of the Court. It ought not in the first place to have been filed without validating the notice.
The fact that it is there in the Registry is not a ground for extension of time to file a Notice of appeal. I dismiss the application with costs to the respondent which I assess at Shs.5,000/=. This must be paid within 10 days hereof otherwise execution to issue. A right to file a reference is granted.
Dated and delivered at Nakuru this 28th day of September, 2001.
P.K. TUNOI ................ JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR