[2000] KECA 175 (KLR)
The court found that the applicant and his advocate were present when the date for delivery of the ruling was set and therefore had knowledge of when the ruling would be delivered. Their failure to attend court on the scheduled date or make arrangements to obtain the ruling did not amount to sufficient cause for the...
Source-derived case information.
- Citation
- [2000] KECA 175 (KLR)
- Parties
- Applicant: John Masitsa; Respondent: Jonathan C. Songo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 264 of 1999
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Extension of Time, Appeal Procedure, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Masitsa
Applicant
Jonathan C. Songo
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in lodging a notice of appeal and record of appeal.
- 2 Whether the court should exercise its discretion to extend time under rule 4 of the Court of Appeal Rules.
Ratio Decidendi
The court found that the applicant and his advocate were present when the date for delivery of the ruling was set and therefore had knowledge of when the ruling would be delivered. Their failure to attend court on the scheduled date or make arrangements to obtain the ruling did not amount to sufficient cause for the delay in filing the notice of appeal. The court declined to exercise its discretion to extend time, holding that ignorance of the ruling date could not be pleaded in the circumstances where the parties had actual notice of the date.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for extension of time is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
CORAM: KWACH, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI 264 OF 1999
BETWEEN
JOHN MASITSA ...................................................... APPLICANT
AND
JONATHAN C. SONGO ........................................ RESPONDENT
(Application for extension of time from the ruling of the High Court of Kenya at Kakamega (Tanui J) dated 28th April, 1999 in KAK. H.C.C.C. NO. 67 OF 1998) *******************R U L I N G
This is an application under rule 4 of the Court of Appeal Rules for extension of time to lodge a Notice of Appeal and a Record of Appeal.
The decision against which the applicant wishes to appeal was given by Tanui K on 28. 4.99. It was made in an application made by the applicant for review. The reason given by the applicant for not lodging a notice of appeal in time is that he was not present in court when the learned Judge delivered his ruling on 28. 4.99. That may be so but both he (applicant) and his Advocate were present on 11. 4.99 when the application was heard and the Judge reserved his ruling until 28. 4.99. So, both the applicant and his Advocate had knowledge of the date of delivery of the ruling. They chose not to attend on 28. 4.99 to take the ruling. The applicant cannot now turn round and plead ignorance. I refuse to exercise my discretion in favour of the applicant and dismiss his application with costs to the respondent.
Dated and delivered at Kisumu this 22nd May of March, 2000. J O. KWACH
---------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR