[2001] KECA 287 (KLR)
The court found that the applicant failed to provide any explanation for the delay between the date the proceedings and judgment were delivered and the date the application was filed. Additionally, the applicant did not comply with the requirements of Rule 81, as the letter requesting proceedings was not copied to...
Source-derived case information.
- Citation
- [2001] KECA 287 (KLR)
- Parties
- Applicant: James Mwando Nganga; Respondent: Njeri Nganga & 'A'; Respondent: Njejri Nganga 'B'
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 231 of 2001
- Procedural Posture
- Civil Application / Application for Extension of Time to File Record of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeal Procedure, Record of Appeal, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwando Nganga
Applicant
Njeri Nganga & 'A'
Respondent
Njejri Nganga 'B'
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the record of appeal.
- 2 Whether the requirements of Rule 81 regarding service and timing of letters were complied with.
- 3 Whether the court should exercise its discretion to grant an extension of time.
Ratio Decidendi
The court found that the applicant failed to provide any explanation for the delay between the date the proceedings and judgment were delivered and the date the application was filed. Additionally, the applicant did not comply with the requirements of Rule 81, as the letter requesting proceedings was not copied to the opposite side and was not sent within 30 days of judgment. In the absence of any excuse or explanation for the delay, the court held that there was no basis to exercise its discretion to grant an extension of 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
7 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU CORAM: LAKHA, J.A (IN CHAMBERS) CIVIL APPLICATION NO. 231 OF 2001 (NAK.29/2001) BETWEEN
JAMES MWANDO NGANGA ............................... APPLICANT AND NJERI NGANGA & 'A' NJEJRI NGANGA 'B' ................................ RESPONDENTS(Application for extension of time to file Record of Appea out of time in an intended appeal from the Judgment & Decree of the High Court of Kenya at Nakuru (Rimita, J) dated 17th May, 2000 in NAKURU H.C.SUCCESSION CAUSE NO. 241 OF 1994) *************** R U L I N G
This is an application under rule 4 of the Rules of this Court for an extension of time to file the record of appeal. The judgment was delivered on 17. 5.2000 and the notice of appeal was filed on 24. 5.2001. When it was served is in dispute. Assuming, without deciding, that it was served within the prescribed time the proceedings and judgment were delivered to the applicant on 15. 2.2000 according to certificate of delay at p.12. There is no explanation of the time taken up between that date and 3 July, 2001. The delay has not been explained. As the letter was not copied to the opposite side Rule 81 cannot assist its applicant. The second letter was not given within 30 days of judgment as required by rule 81.
Where there is no excuse or explanation there can be no indulgence. I do not find any basis on which I can exercise my discretion. Accordingly the application fails and is dismissed with costs.
Made at Nakuru this 27th day of September, 2001.
A. A. LAKHA ............... JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR