[1997] KECA 245 (KLR)
The court found that the applicants' counsel was aware that the appeal had been filed out of time and that the earlier application to regularize the appeal had become useless once the appeal was struck out. There was no rule preventing the applicants from filing the present application while the earlier one was...
Source-derived case information.
- Citation
- [1997] KECA 245 (KLR)
- Parties
- Applicant: Johnson Mbiri Kiratu; Applicant: Lucy Mabuti Mbiri; Respondent: Rogers Muriithi Kiratu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 347 of 1996
- 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, Appeals Process, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Mbiri Kiratu
Applicant
Lucy Mabuti Mbiri
Applicant
Rogers Muriithi Kiratu
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicants have provided sufficient justification for the delay in filing the application for extension of time to file notice and record of appeal.
- 2 Whether the court should exercise its discretion under Rule 4 of the Court of Appeal Rules to grant the extension sought.
Ratio Decidendi
The court found that the applicants' counsel was aware that the appeal had been filed out of time and that the earlier application to regularize the appeal had become useless once the appeal was struck out. There was no rule preventing the applicants from filing the present application while the earlier one was pending. The delay of about five and a half months was not justified, and the applicants failed to provide a sufficient explanation for not acting promptly. The court, exercising its discretion judicially, declined to grant the extension of time sought and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file notice of appeal and record of appeal out of time is dismissed with costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI
(CORAM: SHAH, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 347 OF 1996
BETWEEN
JOHNSON MBIRI KIRATU
LUCY MABUTI MBIRI .................................... APPLICANTS
AND
ROGERS MURIITHI KIRATU ............................... RESPONDENT
(An application for leave to file Notice of Appeal and Record
of Appeal in an intended Appeal from the Judgment/Decree
of the High Court of Kenya at Nyeri (Lady Justice
Ang'awa) dated 29th September, 1993
in
H.C.C.C. NO. 342 OF 1986)
******************
R U L I N G
I have, before me, an application made under Rule 4 of the Rules of this Court, for extension of time to file a notice of appeal and record of appeal out of time.
The relevant facts are that the appeal filed by the applicant (Civil Appeal No. 213 of 1995) was struck out as having been filed out of time without leave; the said appeal was struck out on 15th May, 1996; prior to the appeal being struck out the applicant's counsel was aware of the fact that the appeal was filed out of time as he had applied for extension of time to treat the appeal as having been filed in time prior to the date the appeal itself came up for hearing; that application was withdrawn on 16th October, 1996.
The application was filed on 29th day of october, 1996 after the aforesaid withdrawal of the application to regularize the appeal.
Mr. Mahan for the respondent opposes the application on the ground that there has been an inordinate delay in the filing of this application. The delay, he argued, was about six months.
Mr. Mwangi, counsel for the applicant says that he could not have filed the application until after his earlier application to regularize the appeal itself was dealt with and that therefore he had to wait until then.
Whilst the application to regularize the struck out appeal was pending there was nothing to stop the applicant from filing this application. There is no rule in the Rules of this Court barring the applicant from filing the present application despite the pendency of an application which had died a natural death when the appeal was struck out. The question that I have to go into now is as to whether Mr. Mwangi was justified in waiting for about six months before filing this application when he himself says that his earlier application was overtaken by events on 15th May, 1996. My view is that Mr. Mwangi should have filed this application much earlier in time as he was aware of the uselessness of the pending application. I agree with Mr. Mahan when he argued that Mr. Mwangi was taking matters for granted.
I have undoubted discretion to extend time under Rule 4 of the Rules of this Court; but that discretion is to be exercised judicially and I cannot accommodate an applicant who takes 5 months and a half to apply for extension of time. The application, in the circumstances, is dismissed with costs.
Dated and delivered at Nyeri this 15th day of May, 1997.
A.B. SHAH
.................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR