[2001] KECA 25 (KLR)
The Court held that the applicant failed to provide a satisfactory explanation for the 47-day delay in filing the notice of appeal. There was no evidence that the court file was missing during the relevant period, and the applicant did not file an affidavit from the advocate's clerk to explain the delay, especially...
Source-derived case information.
- Citation
- [2001] KECA 25 (KLR)
- Parties
- Applicant: Hamendra Mansukhlal Shah; Respondent: Alnoor Kara; Respondent: Premier Savings & Finance Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Application 104 of 2000
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal and Record of Appeal Out of Time
- Outcome
- reference dismissed with costs
- Judges
- AM Akiwumi, D Ole Keiwua
- Legal Topics
- Extension of Time, Notice of Appeal, Judicial Discretion, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hamendra Mansukhlal Shah
Applicant
Alnoor Kara
Respondent
Premier Savings & Finance Limited
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal and Record of Appeal Out of Time
Legal Issues
- 1 Whether the applicant demonstrated sufficient cause for the delay in filing the notice of appeal out of time.
- 2 Whether the learned single judge exercised her discretion correctly in refusing to grant leave for extension of time.
Ratio Decidendi
The Court held that the applicant failed to provide a satisfactory explanation for the 47-day delay in filing the notice of appeal. There was no evidence that the court file was missing during the relevant period, and the applicant did not file an affidavit from the advocate's clerk to explain the delay, especially given that the advocate had applied to withdraw within 7 days of the decision. The Court found that the single judge exercised her discretion correctly and judicially in refusing the application for extension of time. Consequently, the reference was dismissed with costs.
Court Disposition
reference dismissed with costs
Orders
- The reference is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT MOMBASA
Civil Appli 104 of 2000
HAMENDRA MANSUKHLAL SHAH.........................................................................................APPLICANT
AND
1. ALNOOR KARA
2. PREMIER SAVINGS & FINANCE LIMITED..............................................................RESPONDENTS
(An application for extension of time to file a Notice of Appeal and Record of Appeal out of time in an intended appeal from a Ruling of the High Court of Kenya at Mombasa (Waki, J.)
dated 21/10/97
in
H.C.C.C. NO. 205"A" OF 1996)
*************************
RULING OF THE COURT:
By this reference the applicant asks us to set aside the decision of the learned single judge of this Court by which she refused to exercise her discretion by granting leave to the applicant to file and serve a notice of appeal and lodge an intended appeal out of time.
The delay involved in failing to file the Notice of Appeal is 47 days. There is no evidence whatsoever that the Court file went missing from the Registry within that period. After all this fact alone could not prevent the applicant from lodging the Notice. Moreover, it is trite law that a notice of appeal is a simple and not a complicated document which does not need a lot of ceremony to lodge. Especially where the applicant's Advocate had 7 days after the decision intended to be appealed against, applied to withdraw from representing the applicant, an affidavit from that Advocate's clerk explaining the delay in lodging the Notice of Appeal was crucial. But no such affidavit was filed in support of the application to the Single Judge of this Court.
We are of the view that the learned single judge of this Court correctly and judicially exercised her discretion against the applicant. We cannot fault her. The reference is dismissed with costs.
Dated and delivered at Mombasa this 19th day of January, 2001.
A.M. AKIWUMI
..............
JUDGE OF APPEAL
P.K. TUNOI
..............
JUDGE OF APPEAL
M. KEIWUA
.............
JUDGE OF APPEAL
I certify that this is true copy of the original.
DEPUTY REGISTRAR