[1986] KECA 59 (KLR)
The court found that the applicant failed to provide any explanation for the delay in filing the notice of appeal and the record of appeal. The applicant did not attend the hearing or respond to the replying affidavit. The notice of appeal was filed out of time, and no application was made to extend the time for...
Source-derived case information.
- Citation
- [1986] KECA 59 (KLR)
- Parties
- Applicant: Joshua Chege Wanyoike; Respondent: James Thiga Mukuro
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 55 of 1984
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time
- Outcome
- application dismissed with costs to the respondent
- Judges
- JM Gachuhi
- Legal Topics
- Extension of Time, Service of Record of Appeal, Late Filing, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Chege Wanyoike
Applicant
James Thiga Mukuro
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the applicant is entitled to an extension of time to serve the record of appeal.
- 2 Whether the delay in filing the notice of appeal and record of appeal has been sufficiently explained.
Ratio Decidendi
The court found that the applicant failed to provide any explanation for the delay in filing the notice of appeal and the record of appeal. The applicant did not attend the hearing or respond to the replying affidavit. The notice of appeal was filed out of time, and no application was made to extend the time for filing it. In the absence of any explanation or compliance with procedural requirements, the court had no basis to exercise its discretion in favour of the applicant. The application for extension of time was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for extension of time is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL MISCELLANEOUS APPLICATION 55 OF 1984
JOSHUA CHEGE WANYOIKE ………………..……………………….….. APPLICANT
AND
JAMES THIGA MUKURO ……………………………..…...…………… RESPONDENT
(Application for extension of time to serve the record of appeal and the appeal be admitted of time at the High Court of Kenya at Nakuru ( Masime J ) dated December 3, 1983 In
High Court Civil Case No 235 of 1982
_________________
RULING
The applicant was duly served with the notice for the hearing of the application but did not attend as required. The application was then stood over to this morning hoping that in the meantime the applicant would make enquiries so as to be notified of this morning’s hearing. There is no appearance again today. Under the circumstances the hearing proceeded ex parte under rule 55(1).
Mr. Patel has submitted that the notice of appeal was filed out of time in that the judgment having been delivered on December 3, 1984 the latest date for filing the notice of appeal was December 7, 1984, but it was filed on December 21, 1984. This is clearly out of time. The applicant has not applied for this time to be extended as a step to be corrected in the appeal. Instead, the application before me is for extension of time within which to file the record of appeal.
Even for that application, no reasons have been stated as to the cause of delay. It is unfortunate that even the replying affidavit filed by Mr Patel on September 18, 1986 and served on the same day no further affidavit by the applicant has been filed in answer to that replying affidavit.
The court has no explanation from the applicant on these matters. There is nothing I can do but to dismiss this application with costs to the respondent It is so ordered.
Dated at Nakuru this 29th day of September, 1986.
JM GACHUHI
JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR