[2001] KECA 258 (KLR)
The court found that the applicant failed to provide any satisfactory explanation or excuse for the delay in filing the notice of appeal and the application for extension of time. The delay of about a month and a half after the applicant became aware of the omission was deemed inordinate and unexplained. The court...
Source-derived case information.
- Citation
- [2001] KECA 258 (KLR)
- Parties
- Applicant: Johana Kamonjo Wahome; Respondent: Kariuki Githuku
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 328 of 2001
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Notice of Appeal, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johana Kamonjo Wahome
Applicant
Kariuki Githuku
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the notice of appeal and record of appeal.
- 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 found that the applicant failed to provide any satisfactory explanation or excuse for the delay in filing the notice of appeal and the application for extension of time. The delay of about a month and a half after the applicant became aware of the omission was deemed inordinate and unexplained. The court held that, in the absence of a reasonable explanation, it could not exercise its discretion to grant the extension sought. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file and serve a notice of appeal out of time is dismissed with costs.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NYERI (CORAM: (LAKHA, J.A. (IN CHAMBERS)) CIVIL APPLICATION NO. NAI. 328 OF 2001 (NYR.18/2001) BETWEEN
JOHANA KAMONJO WAHOME ............................. APPLICANT AND KARIUKI GITHUKU ................................... RESPONDENT(Application for extension of time to file and serve a Notice of Appeal out of time in an intended appeal from a Judgment &Decree of the High Court of Kenya at Nyeri (Mr. Justice Juma) dated 9th July, 2001 in H.C.C.C. NO. 59 OF 1996) ****************** R U L I N G
This is an application on behalf of the unsuccessful defendant under rule 4 of the Rules of this Court for an extension of time to file a notice of appeal and a record of appeal from a decision of the superior court (Juma, J.) given on 19 July, 2001. Mr. Wachira depones in his supporting affidavit that he forgot to file a notice of appeal.
Assuming, without deciding, that that was so he remembered the omission on 1 August, 2001. But this application for an extension was not filed until 17 September, 2001 about a month and a half later. No notice was filed during this period either. A notice of appeal is a simple formal document; so is this application. I hold that 12 months is an inordinate delay which has not been explained or accounted for in any way. Where there is no excuse or explanation there can be no indulgence.
Having regard to all the circumstances I am satisfied that this is not a fit or proper case for the exercise of my discretion. The application fails and it is accordingly dismissed with costs.
Made at Nyeri this 29th day of October, 2001.
A.A. LAKHA ................ JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR