[2006] KECA 258 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the inordinate delay in filing the notice and record of appeal. The applicant's reliance on professional negligence and fault of legal counsel was not sufficient, especially given the applicant's own inaction for a year after being...
Source-derived case information.
- Citation
- [2006] KECA 258 (KLR)
- Parties
- Applicant: Josphat Kariuki Kamau; Respondent: Pias Nungari Kamau; Respondent: Ernest Mwaura Kamau
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 35 of 2006
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Process, Succession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Kariuki Kamau
Applicant
Pias Nungari Kamau
Respondent
Ernest Mwaura Kamau
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the inordinate delay in filing the notice and record of appeal out of time.
- 2 Whether the court should exercise its discretion to grant extension of time under rule 4 of the Court of Appeal Rules.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the inordinate delay in filing the notice and record of appeal. The applicant's reliance on professional negligence and fault of legal counsel was not sufficient, especially given the applicant's own inaction for a year after being directed by the court. The court also noted that the notice of appeal on record was irrelevant to the ruling being challenged. The delay was prejudicial to the respondents, and the estate had already been fully administered. Consequently, the court declined to exercise its discretion 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 and record of appeal is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
NAIROBI
Civil Appli 35 of 2006
JOSPHAT KARIUKI KAMAU……………………………....…APPLICANT
AND
1. PIAS NUNGARI KAMAU……………..………….…….…………1ST RESPONDENT
2. ERNEST MWAURA KAMAU……………………………..……..2ND RESPONDENT
(An application for leave to file notice and record of appeal out of time from the Ruling of the High Court of Kenya at Nairobi (Etyang, J) dated 21st March, 2000
in
H.C.SUC. C. NO. P&A 1123 of 1989)
*****************
R U L I N G
The applicant seeks an order under rule 4 of the Rules of this Court for extension of time within which to lodge and serve a Notice of Appeal and a Record of Appeal from the decision of Etyang, J. in Succession Cause No. 1123 of 1989, given on 21st March, 2000.
It is apparent that there has been a grave and inordinate delay in lodging the appeal or the application which would have enabled the applicant to file a proper appeal. The applicant explains this by saying that it was caused by “professional negligence and fault of legal counsel” to pursue the previous pending application – i.e. to put his house in order. But, the applicant went to sleep for a year and did not take any steps as directed by the learned single Judge of this Court. The delay is not explained to my satisfaction.
Also, the record shows that the applicant is complaining against the ruling made on 21st March 2000 and no Notice of Appeal has been availed to me to show that it was filed within the prescribed time. The one on record shows that it was filed on 6th February, 2001 against a ruling made on 1st February, 2001. There is no such ruling and the Notice thereto is irrelevant to this application.
The procrastination in bringing this application is prejudicial to the respondents. To prolong the dispute by a frivolous appeal, also, is detrimental to the interests of both parties. The estate has been fully administered according to the Order of Etyang, J and the applicant is collecting rents.
The inordinate delay involved makes me not exercise my discretion in favour of the applicant.
I dismiss the application with costs.
DATED and DELIVERED at NAIROBI this 27th day of April, 2006.
P.K. TUNOI
……………………….
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR