[1999] KECA 35 (KLR)
The application for extension of time was dismissed because the applicant failed to provide sufficient material to enable the court to exercise its discretion. The record did not contain copies of the relevant rulings, and there was no affidavit from the previous advocates denying receipt of the notice of delivery...
Source-derived case information.
- Citation
- [1999] KECA 35 (KLR)
- Parties
- Applicant: John Mwandia; Respondent: Mohammed Shariff Chaudhry
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 100 of 1999
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeal Procedure, Review Applications
- 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 Mwandia
Applicant
Mohammed Shariff Chaudhry
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether sufficient material was placed before the court to exercise discretion to extend time for filing notice and record of appeal.
- 2 Whether the delay in filing the application for extension of time was explained satisfactorily.
Ratio Decidendi
The application for extension of time was dismissed because the applicant failed to provide sufficient material to enable the court to exercise its discretion. The record did not contain copies of the relevant rulings, and there was no affidavit from the previous advocates denying receipt of the notice of delivery of the ruling. Furthermore, the delay of over one month in filing the application after becoming aware of the ruling was not satisfactorily explained. The court found that, in the absence of adequate evidence and explanation, it could not grant the extension sought.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file notice and record of appeal out of time is dismissed with costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI
CIVIL APPLICATION NO. 100 OF 1999
JOHN MWANDIA.....................................APPLICANT AND MOHAMMED SHARIFF CHAUDHRY...........................RESPONDENT
(An application for leave to file notice of appeal and record of appeal out of time, in an intended appeal rom the order of the High Court of Kenya at Nairobi (Hon. Justice Moijo Ole Keiwua) dated 5th February,
1999
in
H.C.C.C. NO. 788 OF 1995)
******************** R U L I N G
I have before m e an application brought under rules 4 and 42(2) of the Rules of this Court for extension of time to lodge a notice of appeal and record of appeal out of time. The ruling which the applicant intends to appeal against was delivered by the superior court (Ole Keiwua, J) on 5th February, 1999 inH.C.C.C. No. 788 of 1995which was consolidated withH.C.C.C. No. 3529 of 1995. The said ruling was delivered on 5th February, 1999. A copy of that ruling is not in the record of the application before me. It is therefore not possible for me to say what it is all about save to say that it must have been an application for review which was dismissed by the learned judge. The application itself is before me at page 51 of the record of the application and it seeks (inter alia) review of orders made the ruling delivered on 12th May, 1997. Even that ruling is not before me in the said record.
In this state of affairs I am unable to make any orders as sought as there is no sufficient material before me to enable me to exercise my discretion (which undoubtedly I have) to grant extension of time.
The applicant's present advocate depones to the effect that the previous advocates did not receive any notice of delivery of ruling dated 5th February, 1999. The respondent's advocate has annexed, to his affidavit, a copy of the said notice (addressed to both advocates on record) which was received by him on 8th February, 1999. If he received the same on 8/2/99 and took steps thereon (to extract the order) I do not see how the then advocates for the respondent did not receive the same. It is common ground that none of the advocates on record attended the delivery of ruling. However, there is no affidavit by any advocate from the firm of Njenga Muchiri & Company to the effect that the firm did not receive the said notice.
After being aware of the ruling on 23rd March, 1999 the present advocates of the respondent did not file this application until 30th April, 1999. In the peculiar circumstances of this application the delay of over one month in filing this application is somewhat inordinate and has not been explained to my satisfaction. But I say no more on all this as there is not sufficient material before me, as I said earlier, to enable me to exercise my discretion.
This application is dismissed with costs.
Dated and delivered at Nairobi this 23rd day of July, 1999
A.B. SHAH ............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRARY