[2004] KECA 71 (KLR)
The court found that the delay of about two months in filing the appeal was not inordinate given the circumstances, including possible settlement negotiations and confusion about representation. The applicant was not entirely to blame for the delay, and demonstrated readiness to proceed with the appeal. Exercising...
Source-derived case information.
- Citation
- [2004] KECA 71 (KLR)
- Parties
- Applicant: John Ayuko; Respondent: Beatrice Nyambuteri
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- ? 203 of 2004
- Procedural Posture
- Civil Application / Application for Extension of Time to File Appeal
- Outcome
- Application allowed. Extension of time granted.
- Legal Topics
- Extension of Time, Appeals Out of Time, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Ayuko
Applicant
Beatrice Nyambuteri
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file a memorandum and record of appeal out of time.
- 2 Whether the delay of about two months in filing the appeal is inordinate or excusable.
Ratio Decidendi
The court found that the delay of about two months in filing the appeal was not inordinate given the circumstances, including possible settlement negotiations and confusion about representation. The applicant was not entirely to blame for the delay, and demonstrated readiness to proceed with the appeal. Exercising judicial discretion, the court granted leave to file the appeal out of time, subject to the applicant paying the respondent's costs for the application.
Court Disposition
Application allowed. Extension of time granted.
Orders
- The applicant shall file and serve the memorandum of appeal and the record of appeal within 21 days.
- The applicant shall pay to the respondent the costs of this application assessed at Shs.20,000/= within 14 days.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU CORAM: TUNOI, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 203 OF 2004
BETWEEN
JOHN AYUKO……………………………..………………..APPLICANT AND BEATRICE NYAMBUTERI…………………………….RESPONDENT
(Being an application for ex tension of time to file a notice of appeal out of time against the ruling & order of the High Court of Kenya at Kisumu (Tanui, J) dated 5 th February, 2004
in H.C.C.C. NO. 319 OF 2003) *****************
R U L I N G
This is an application for extension of time within which to file a memorandum of appeal and record of appeal against the ruling and decision given by Tanui, J. on 5th February, 2004 in Kisumu H.C.C.C. NO. 319 of 2002.
The delay involved is about two months and the decree the subject matter of the intended appeal is in the region of Shs.2,500,000/=.
It is true, there could have been negotiations for a settlement out of court and confusion about representation of the respondent. But, I am of the view that the applicant is not entirely to blame for the delay.
Moreover, the delay of about two months in a situation like the one appertaining herein cannot be said to be inordinate. I am also informed that the applicant is ready, now, to lodge the intended appeal.
I will exercise my discretion in favour of the applicant and grant leave to lodge an appeal out of time. The applicant shall file and serve the memorandum of appeal and the record of appeal within 21 days hereof.
The applicant shall pay to the respondent the costs of this application which I assess at Shs.20,000/=. These shall be paid within 14 days hereof.
DATED and DELIVERED at KISUMU this 25 th day of November,
P.K. TUNOI ……………………… JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR