[1999] KECA 37 (KLR)
The court declined to exercise its discretion to extend time for filing the record of appeal because the applicant failed to provide any explanation for the inordinate delay of about three months in bringing the application. The absence of any material or explanation in the supporting affidavit or during submissions...
Source-derived case information.
- Citation
- [1999] KECA 37 (KLR)
- Parties
- Applicant: Harrison Mwangi; Respondent: Esther Wambui Njenga t/a Naivasha Gilgil Timber Yard
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 177 of 1999
- Procedural Posture
- Civil Application / Application for Extension of Time to File Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Process, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harrison Mwangi
Applicant
Esther Wambui Njenga t/a Naivasha Gilgil Timber Yard
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the application for extension of time.
- 2 Whether the court should exercise its discretion to grant an extension of time under rule 4 of the Court of Appeal Rules.
Ratio Decidendi
The court declined to exercise its discretion to extend time for filing the record of appeal because the applicant failed to provide any explanation for the inordinate delay of about three months in bringing the application. The absence of any material or explanation in the supporting affidavit or during submissions meant there was no basis for the court to grant indulgence. The rules of court must be obeyed, and without a satisfactory explanation for delay, the court cannot extend time. Consequently, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file the record of appeal is dismissed with costs.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU (CORAM: LAKHA, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 177 OF 1999
BETWEEN
HARRISON MWANGI..........................................APPLICANT AND ESTHER WAMBUI NJENGA T/A NAIVASHA GILGIL TIMBER YARD ........................RESPONDENT
(Application for extension of time to file an appeal from the Judgment of the High Court at Nakuru (Hon. Justice Rimita) dated 14th December, 1998 in H.C.C.C. NO. 639 OF 1995) ***************** R U L I N G
This is an application under rule 4 of the Rules of this Court ("the Rules") for an extension of time to file the record of appeal. It is supported by an affidavit and is based on the ground that by the time the copies of the proceedings and judgment were supplied on 26th March, 1999 the time for the filing of the apppeal had expired. As no copy for the application was sent to the other side the applicant could not avail himself of the automatic extension under the proviso toRule 81 of the Rules. This application was filed on 21 June 1999, about three months later.
It is true that under rule 4 of the Rules the Court has the widest measure of discretion. But however wide that discretion it must be judicially exercised. Mr. Mundia, for the respondent, contends and, in my view rightly, that there has been inexcesible delay. Speaking for myself I consider that a delay of about 3 months in filing this application is inordinate. What is unfortunate is that there is no explanation in the supporting affidavit accounting for this delay. Nor was there any during the submissions. Rules of Court are to be obeyed and if there is to be an extension there must be material before the Court why a discretion should be exercised. Here there is none. Where there is no explanation there can be no indulgence. Having regard to all the circumstances, I must decline, as I hereby do, to exercise my discretion in favour of the applicant as I do not consider this to be a proper case for any indulgence to be extended.
Accordingly and, for the reasons above stated, I dismiss this application with costs.
Delivered at Nakuru this 23rd day of September, 1999.
A. A. LAKHA ---------------------- JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR