[2005] KECA 280 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the delay in filing the reference, as the affidavit did not disclose when counsel was instructed and the delay of about eight days was deemed inordinate given the strict timelines under the Court of Appeal Rules. The court also...
Source-derived case information.
- Citation
- [2005] KECA 280 (KLR)
- Parties
- Applicant: John Murimi Ngari; Respondent: Kabuchu Rwario Kanja; Respondent: Mwenja Munyiri Migwi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 225 of 2005
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Reference
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Reference to Full Bench, Court of Appeal Rules, Delay in Filing, Exercise of Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Murimi Ngari
Applicant
Kabuchu Rwario Kanja
Respondent
Mwenja Munyiri Migwi
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Reference
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the reference.
- 2 Whether the delay in filing the reference is inordinate under the Court of Appeal Rules.
- 3 Whether the intended reference has merit to warrant extension of time.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the delay in filing the reference, as the affidavit did not disclose when counsel was instructed and the delay of about eight days was deemed inordinate given the strict timelines under the Court of Appeal Rules. The court also determined that the intended reference lacked merit and was frivolous, and that granting the extension would unduly prejudice the respondents by prolonging a vexatious dispute. The applicant's assertion regarding the length of delay was found to be inaccurate and not candid. Consequently, the court exercised its discretion against the applicant and dismissed the application for...
Court Disposition
application dismissed with costs
Orders
- The application for extension of time is dismissed.
- The applicant shall pay costs assessed at KES 3,000 within 7 days.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NYERI
Civil Application Nai 225 of 2005
JOHN MURIMI NGARI ………….....……………………………………. APPLICANT
AND
KABUCHU RWARIO KANJA
MWENJA MUNYIRI MIGWI ………….…….…………………….. RESPONDENTS
(Application for extension of time to file a Reference from a judgment of the High Court of Kenya at Nyeri (Khamoni J) dated 23rd October, 2003
in
H.C.C.A. NO. 57 OF 1998)
*********************
R U L I N G
The applicant moves the Court under Rule 4 of the Rules of this Court for extension of time within which to write a letter to the Registrar for a reference from a decision of a learned single Judge of this Court delivered on 19th May, 2005.
The applicant depones in the affidavit in support of the application that though he instructed counsel to lodge a reference, counsel failed to do so within the prescribed time. However, it is not clear from the affidavit when counsel was instructed. This has not been revealed to me.
The delay involved herein is about eight days and has not been explained to my satisfaction. In a reference, such a delay, is inordinate since the Rules of this Court have specified a very limited period within which to file it.
The applicant is pursuing a second appeal before this Court. What he would have wanted to prosecute is a dispute of a frivolous nature as shown by the judgment of the superior court.
The applicant, in my view, has not shown that there is merit in the intended reference. Moreover, the extension of time sought, if granted will prolong a frivolous and vexatious dispute and cause undue prejudice to the respondent. Again, the delay involved in lodging this application is inordinate in the circumstances.
The applicant insists that the delay in lodging the Notice of Appeal is one day. This is not so since the learned single Judge found it to be eleven months. The applicant is, in this sense, not being candid. I refuse to exercise my discretion in his favour.
In the result this application is hereby dismissed with costs which I assess at Shs.3,000/= which shall be paid within 7 days hereof.
Dated and delivered at Nyeri this 3rd day of November, 2005.
P. K. TUNOI
……………………………
JUDGE OF APPEAL
I certify that this a true copy of the original.
DEPUTY REGISTRAR