[2002] KECA 275 (KLR)
The court found that the applicant's explanation for the delay—namely, that time was taken up in obtaining instructions—was insufficient, especially given the length of the delay (about 22 months) and the absence of any suggestion that the client was overseas or otherwise indisposed. The court held that there was...
Source-derived case information.
- Citation
- [2002] KECA 275 (KLR)
- Parties
- Applicant: Joseph Eric Owino; Respondent: Eunice Orare Were
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 121 of 2002
- Procedural Posture
- Civil Application / Application for Extension of Time to Lodge and Serve Notice of Appeal and Record of Appeal Out of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeal Procedure, Exercise of Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Eric Owino
Applicant
Eunice Orare Were
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to Lodge and Serve Notice of Appeal and Record of Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided a satisfactory explanation for the delay in filing and serving the notice of appeal and record of appeal out of time.
- 2 Whether the court should exercise its discretion to grant an extension of time under rule 4 of the Court of Appeal Rules.
Ratio Decidendi
The court found that the applicant's explanation for the delay—namely, that time was taken up in obtaining instructions—was insufficient, especially given the length of the delay (about 22 months) and the absence of any suggestion that the client was overseas or otherwise indisposed. The court held that there was less than proper diligence shown by the applicant and that the delay was inordinate. As a result, the court was unable to exercise its discretion to grant an extension of time, as the delay was not properly explained and the requirements for indulgence under rule 4 of the Court of Appeal Rules were not met.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time is dismissed with costs.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
(CORAM: LAKHA, J.A. (IN CHAMBERS))
CIVIL APPLICATION NO. NAI. 121 OF 2002
BETWEENJOSEPH ERIC OWINO ....................APPLICANTANDEUNICE ORARE WERE .................RESPONDENT(Being an application for extension of time to lodge and serve the Notice of Appeal and Record of Appeal out of time from the Judgment and Decree of the High Court of Kenya at Eldoret (Aganyanya, J.) dated 10th August, 1989inH.C.C.C. NO. 48 OF 1988)****************R U L I N G
This is an application under rule 4 of our rules seeking an extension of time to file and serve a notice of appeal and a record of appeal for an appeal from a decision of thesuperior court given on 10 August, 1989 .
An earlier application was struck out for being out of time. This was on 21 February, 2002 . This application was filed on 2 May 2002 . The explanation is time was taken up in obtaining instructions. In my judgment this delay of about 22 months is inordinate particularly when it was not suggested the client was overseas. I think there was less than proper diligence shown.
There can be no indulgence unless delay is properly explained. This is not the case here. I am unable to exercise my discretion in favour of the applicant.
The application is dismissed with costs.Made at Nakuru this 19th day of September, 2002. A.A. LAKHA ...................JUDGE OF APPEALNote: Mr. Buluma gives notice of intention for reference under rule 54(1)(b) of the Rules.Court: It is so noted.A.A. LAKHA...............JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR