[1984] KECA 94 (KLR)
The court found that the applicant's advocate was not at fault for the delay in lodging the notice of appeal, as the confusion arose from multiple dates being given at short notice and the notice of the actual ruling date was received late. There was no evidence to contradict the applicant's explanation, and the...
Source-derived case information.
- Citation
- [1984] KECA 94 (KLR)
- Parties
- Applicant: Isaac Chepkwony; Respondent: David Samoei; Respondent: Elisha Busienei; Respondent: Kiptoo Meto
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 64 of 1983
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Notice of Appeal, Court Discretion, Procedural Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Chepkwony
Applicant
David Samoei
Respondent
Elisha Busienei
Respondent
Kiptoo Meto
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to lodge a notice of appeal.
- 2 Whether the delay in lodging the notice of appeal was excusable under the circumstances.
Ratio Decidendi
The court found that the applicant's advocate was not at fault for the delay in lodging the notice of appeal, as the confusion arose from multiple dates being given at short notice and the notice of the actual ruling date was received late. There was no evidence to contradict the applicant's explanation, and the respondent did not file a replying affidavit. Exercising its wide discretion under rule 4 of the Court of Appeal Rules, the court determined that the circumstances justified granting an extension of time. The applicant was therefore entitled to the orders sought, allowing the notice of appeal to be lodged within 14 days and compliance with rule 76 thereafter. Costs of the...
Court Disposition
application allowed
Orders
- The applicant is granted an extension of time to lodge the notice of appeal within 14 days.
- Thereafter, rule 76 shall be complied with.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Nyarangi, Ag J A (In Chambers)
CIVIL APPLICATION NO NAI 64 OF 1983
BETWEEN
ISAAC CHEPKWONY…………………………..………………………….APPLICANT
AND
1. DAVID SAMOEI
2. ELISHA BUSIENEI ……..…..………………………………………RESPONDENTS
3. KIPTOO METO
(Application for extension of time to file an intended appeal from a ruling of the High Court of Kenya at Nairobi (Owuor, J) dated 1st November, 1983 In High Court Civil Appeal No 203 of 1978)
RULING
The applicant asks for an order under rule 4 of the Court’s rules to extend time in which to lodge a notice of appeal and to provide that costs of, and incidental to this application do abide the result of the intended appeal.
There is an affidavit of the applicant’s advocate in support of the application. Mr Kamau for the applicant stated that the ruling of the superior court, which was due for delivery on the 15th day of July 1983, was not in fact given on that date and that on 20th day of November, 1983, he received notice by post that the ruling would be delivered on the 18th November.
Mr Rach for the respondent, replied that, had Mr Kamau asked him (Mr Rach), he would have told him that the date for the ruling was the 18th November.
There is no replying affidavit and I see no reason for doubting Mr Kamau’s affidavit. Clearly, Mr Kamau was confused by the several dates which were given at short notice. The notice for the 18th November was received late and Mr Kamau is not to blame. The Court has wide discretion (to be exercised Judicially) under rule 4 to make orders to extend time. The applicant is entitled to have the orders he wants. Accordingly, the applicant is granted an extension of time. The notice of appeal shall be lodged in the next 14 days and thereafter rule 76 shall be complied with. The costs of and incidental to this application shall abide the result of the intended appeal.
Delivered at Nairobi this 19th day of April, 1984.
J O NYARANGI
AG JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR