[1998] KECA 107 (KLR)
The court found that the applicant, despite learning of the judgment on 14th November, 1996, did not apply for copies of the proceedings and judgment until 16th January, 1997, which was more than 30 days after learning of the decision. This delay disqualified him from benefiting from the proviso to rule 81(1) of the...
Source-derived case information.
- Citation
- [1998] KECA 107 (KLR)
- Parties
- Applicant: Joseph Kangethe Kagiri; Respondent: Gema Muthiru
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 218 of 1997
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- JE Gicheru
- Legal Topics
- Extension of Time, Appeal Procedure, Inordinate Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kangethe Kagiri
Applicant
Gema Muthiru
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant is entitled to an extension of time to file a notice and record of appeal out of time.
- 2 Whether the delay in seeking extension of time was inordinate and unexplained.
Ratio Decidendi
The court found that the applicant, despite learning of the judgment on 14th November, 1996, did not apply for copies of the proceedings and judgment until 16th January, 1997, which was more than 30 days after learning of the decision. This delay disqualified him from benefiting from the proviso to rule 81(1) of the Court of Appeal Rules. Furthermore, the application for extension of time was filed on 22nd August, 1997, nearly nine months after the applicant became aware of the judgment. The court held that this constituted inordinate delay, and there was no satisfactory explanation for the failure to act promptly. As a result, the court declined to exercise its discretion to grant the...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for extension of time within which to lodge the notice and record of appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 218 OF 1997
BETWEEN
JOSEPH KANGETHE KAGIRI ...............................APPLICANT
AND
GEMA MUTHIRU .........................................RESPONDENT
(An application to file a Notice and Record of Appeal out of time in an intended appeal from a Judgment of the High Court of Kenya at Nairobi (Justice Mbogholi) dated 31st October, 1996 in H.C.C.C. NO. 4926 OF 1990) ********************
R U L I N G
In this application, the decision of the superior court intended to be appealed against was given on 31st October, 1996. The applicant who claims not to have been aware of the aforesaid date learned of the decision on 14th November, 1996 and on 27th November, 1996 he lodged his notice of appeal. This was 13 days after learning of the decision intended to be appealed against on 14th November, 1996. Notwithstanding his learning of this decision on the aforementioned date, the applicant, nevertheless, did not apply for copies of the proceedings and judgment in the superior court until 16th January, 1997 which was clearly more than 30 days from the date he learned of the decision he intends to appeal against on 14th November, 1996.
He cannot therefore benefit from the proviso to rule 81(1) of the Rules of this Court which would mean that as at the date of filing this application on 22nd August, 1997 a period of nearly nine months had elapsed since 14th November, 1996. That is an inordinate delay in respect of which I would be disinclined to grant the applicant extension of time within which to lodge the record of appeal. In that event, the extension of time within which to lodge the notice of appeal would be purposeless. Consequently, I am unable to exercise my discretion under rule 4 of the Rules of this Court in favour of the applicant with the result that his application for extension of time within which to lodge the notice and record of appeal is dismissed with costs to the respondent.
Dated and delivered at Nairobi this 23rd day of January, 1998.
J.E. GICHERU
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR