[2001] KECA 250 (KLR)
The court found that the applicants failed to provide a satisfactory explanation for the delay between 12th April, 2000, when they received the proceedings and judgment, and 13th November, 2000, when they filed the application for extension of time. The reason advanced—that they were waiting for a Certificate of...
Source-derived case information.
- Citation
- [2001] KECA 250 (KLR)
- Parties
- Applicant: John Kariuki Karanja; Applicant: Samwel Ndegwa; Respondent: Gladys Wanjiru Karuga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 346 of ??
- Procedural Posture
- Civil Application / Application for Extension of Time to File Record of Appeal
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Appeals Process, Court of Appeal Rules, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Kariuki Karanja
Applicant
Samwel Ndegwa
Applicant
Gladys Wanjiru Karuga
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the applicants have provided sufficient reason for the delay in filing the record of appeal.
- 2 Whether the absence of a Certificate of Delay is a valid ground for not lodging the appeal after receiving the proceedings and judgment.
Ratio Decidendi
The court found that the applicants failed to provide a satisfactory explanation for the delay between 12th April, 2000, when they received the proceedings and judgment, and 13th November, 2000, when they filed the application for extension of time. The reason advanced—that they were waiting for a Certificate of Delay—was rejected because such a certificate is not a primary document required for lodging an appeal and can be included later in a supplementary record. The delay was deemed inordinate and unexplained, and the court declined to exercise its discretion to grant the extension, notwithstanding the respondent's lack of objection.
Court Disposition
application dismissed
Orders
- The application for extension of time to file the record of appeal is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU (CORAM: KWACH, J.A. (IN CHAMBERS)) CIVIL APPLICATION NO. NAI. 346 OF 2000 BETWEEN
JOHN KARIUKI KARANJA.............................. 1ST APPLICANT SAMWEL NDEGWA .................................... 2ND APPLICANT AND GLADYS WANJIRU KARUGA ............................ RESPONDENT
(Application for extension of time to file the Record of Appeal in an intended appeal from the Judgment & Decree of the High Court of Kenya at Nakuru (Justice Rimita) dated 9th March, 1998 in H.C.C.C. NO. 529 OF 1996) ************** R U L I N G
This is an application under rule 4 of the Court of Appeal Rules for extension of time to file a Record of Appeal.
The decision against which John Karanja and Samwel Ndegwa (the applicants) wish to appeal was given by Rimita J on 9th March, 1998. After filing a Notice of Appeal the applicants applied to the superior court for copies of proceedings and judgment on 18th March, 1998. These were furnished on 12th April, 2000.
It is now claimed by the advocates for the applicants that after receipt of copies of proceedings and judgment on 12th April, 2000 they had to wait for a Certificate of Delay to be issued (COD). This was apparently issued on 3rd August, 2000. Even then they took no action until 13th November 2000 when they filed this application.
The reason given by the applicants' advocates for not lodging an appeal after receiving copies of proceedings and judgment is that they could not do so without a Certificate of Delay. That is not a good enough reason because a Certificate of Delay is not a primary document within the meaning of rule 85(1) of the Court of Appeal Rules and can always be included in a supplementary record of appeal. The consequence of this is that the delay from 12th April, 2000 to 13th November, 2000 has not been explained and since the delay is quite inordinate I am entitled, in exercising my discretion, to disregard the indication by Miss Otieno, for the respondent, that she does not object to the application being granted.
Accordingly, I decline to exercise my discretion in favour of the applicants and dismiss the application with no order as to costs.
Dated and delivered at Nakuru this 21st day of February, 2001.
R.O. KWACH ...................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR