[2003] KECA 98 (KLR)
The court found that the applicant had provided a sufficient and credible explanation for the 30-day delay in filing the record of appeal, namely that the advocate's clerk, who was responsible for filing, was attacked by robbers and hospitalized. The court held that this reason justified the exercise of its...
Source-derived case information.
- Citation
- [2003] KECA 98 (KLR)
- Parties
- Applicant: Henry Ogongo Mageto; Respondent: Nyamiobo Ogongo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 44 of 2003
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Record of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals Process, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Ogongo Mageto
Applicant
Nyamiobo Ogongo
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the record of appeal.
- 2 Whether the court should exercise its discretion to extend time for filing the record of appeal.
Ratio Decidendi
The court found that the applicant had provided a sufficient and credible explanation for the 30-day delay in filing the record of appeal, namely that the advocate's clerk, who was responsible for filing, was attacked by robbers and hospitalized. The court held that this reason justified the exercise of its discretion to extend time, and therefore allowed the application, granting the applicant 30 more days to file the record of appeal, subject to payment of costs to the respondent.
Court Disposition
application allowed
Orders
- The applicant is to file the record of appeal within 30 days of this order.
- The applicant shall pay the respondent KES 500 as costs for the application.
Full Case Text
Judgment text and source record
5 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMUCORAM: O’KUBASU, J.A. (IN CHAMBERS)CIVIL APPLICATION NO. NAI. 44 OF 2003 (KSM.25/2003 UR) BETWEENHENRY OGONGO MAGETO ……………....……………………. APPLICANTANDNYAMIOBO OGONGO ………………………………………… RESPONDENT(An application to extend time from a judgment and decree of the High Court of Kenya at Kisii (Mr. Justice Wambilyangah) dated 16thOctober,2002in H.C.C.C. NO. 320 OF 1998) ***********R U L I N G
This is an application for extension of time in which to file record of appeal. Mr. Sagwe for the applicant submitted that the main ground of the application was that the advocate’s clerk received client’s money for filing record of appeal but the clerk was attacked by robbers and admitted in hospital. There was delay of 30 days.
In an application of this nature an applicant has to explain the reason for the delay. It has been stated that there was a delay of 30 days which was caused by the fact that the advocate’s clerk who had been paid the money for filing the record of appeal was attacked by robbers and consequently admitted in hospital. In my view the reason given for the delay is sufficient to warrant this court to exercise its unfettered discretion in favour of the applicant.
Hence, the application is allowed and the applicant is now to file the record of appeal within 30 days of this order. The applicant will pay to the respondent Shs.500/- as today’s costs.Dated and delivered at Kisumu this 28th day of March, 2003. E. O. O’KUBASU………………………….JUDGE OF APPEAL I certify that this is a true Copy of the original. DEPUTY REGISTRAR