[2005] KECA 229 (KLR)
The court found that the applicant delayed by one day in lodging the notice of appeal but took over 11 months to bring the application for extension of time, citing financial constraints. The court held that the reasons given for the delay were unconvincing and indicative of a lack of seriousness in pursuing the...
Source-derived case information.
- Citation
- [2005] KECA 229 (KLR)
- Parties
- Applicant: John Murigi Ngari; Respondent: Kabuchu Rwario Kanja; Respondent: Mwenja Munyiri Migwi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 301 of 2004
- Procedural Posture
- Extension of Time Application / Ruling
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Extension of Time, Notice of Appeal, Delay in Filing, Second Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Murigi Ngari
Applicant
Kabuchu Rwario Kanja
Respondent
Mwenja Munyiri Migwi
Respondent
Procedural Posture
Extension of Time Application / Ruling
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the notice of appeal.
- 2 Whether the court should exercise its discretion to extend time for lodging the notice of appeal.
Ratio Decidendi
The court found that the applicant delayed by one day in lodging the notice of appeal but took over 11 months to bring the application for extension of time, citing financial constraints. The court held that the reasons given for the delay were unconvincing and indicative of a lack of seriousness in pursuing the intended appeal. The court exercised its discretion against the applicant and dismissed the application for extension of time, awarding costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for extension of time to lodge the notice of appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NYERI
CORAM: GICHERU, C.J. (IN CHAMBERS) Civil Application Nai 301 of 2004 (NYR.22/2004)
BETWEEN
JOHN MURIGI NGARI …………………………..……...……………APPLICANT AND 1. KABUCHU RWARIO KANJA 2. MWENJA MUNYIRI MIGWI………………………...………..RESPONDENTS
(Application for extension of time to file an appeal from a judgment of the High Court of Kenya at Nyeri (Khamoni, J) dated 23. 10. 03
in H.C.C.A. NO. 57 OF 1998) *****************
R U L I N G
In this application, the applicant seeks extension of time within which to lodge his notice of appeal so that the notice of appeal dated 30th October, 2003 and lodged on 7th November, 2003 be deemed to have been lodged within the extended time. It would appear to me that there was a delay of one day in lodging the notice of appeal in respect of which extension is being sought. However, it took the applicant over 11 months to make the present application citing financial constraints as the reason for the delay.
Counsel for the respondents in opposing the applicant’s application refuted this claim as the applicant was a teacher by profession and according to the respondents’ replying affidavit, the cost of filing a notice of appeal is less than Kshs.500/=.
The applicant’s intended appeal in respect of which extension of time for lodging the notice of appeal is being sought is a second appeal and although counsel for the applicant in reply said, without more, that notwithstanding the delay referred to above the applicant had a good appeal, I think that the reasons given for the delay in making this application are porous and smacks of lack of seriousness in the pursuit of his intended appeal. I would in the circumstances decline to grant his application for extension of time within which to lodge his notice of appeal with the result that the same is dismissed with costs to the respondents. It is so ordered.
DATED and DELIVERED at NYERI this 19th day of May, 2005.
J.E. GICHERU
………………………………….
CHIEF JUSTICE
I certify that this is a true copy of the original.
DEPUTY REGISTRAR