[1999] KECA 24 (KLR)
The application for extension of time was dismissed because the applicant failed to provide a certificate of delay or any explanation for the delay in filing the record of appeal. The court held that in the absence of any explanation or supporting material, it could not exercise its discretion in favour of the...
Source-derived case information.
- Citation
- [1999] KECA 24 (KLR)
- Parties
- Applicant: Kamau John Kinyanjui; Respondent: Hezekiah J. Wanyomo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 70 of 1999
- Procedural Posture
- Civil Application / Application for Extension of Time to File Record of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Process, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamau John Kinyanjui
Applicant
Hezekiah J. Wanyomo
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the record of appeal.
- 2 Whether the court should exercise its discretion to extend time for filing the record of appeal.
Ratio Decidendi
The application for extension of time was dismissed because the applicant failed to provide a certificate of delay or any explanation for the delay in filing the record of appeal. The court held that in the absence of any explanation or supporting material, it could not exercise its discretion in favour of the applicant. The applicant's lack of diligence and failure to discharge the burden of explaining the delay were fatal to the application. The court emphasized that discretion is not to be exercised where there is no material to justify indulgence.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file the record of appeal is dismissed with costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CORAM: TUNOI, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. 70 OF 1999
BETWEEN
KAMAU JOHN KINYANJUI ............................... APPLICANT AND HEZEKIAH J. WANYOMO ............................... RESPONDENT
(Application for extension of time to file Record of Appeal from a judgment and decree of the High Court of Kenya at Nairobi (Khamoni, J.) dated 27th day of October, 1999
in
H.C.C.C. NO. 570 OF 1996)
************************** R U L I N G
I regret I have to reject this application. I will not exercise my discretion in favour of the applicant by extending time to lodge the record of appeal for two reasons.
The applicant has not deemed it, for unknown reasons, necessary to attach for my ease of reference a certificate of delay issued by the Deputy Registrar of the superior court.
So, this court cannot dispel the suggestion that no one for sure is able to establish when the proceedings were received by the applicant. They could have been received last year.
Again, no explanation has been offered as to why this application was not lodged by 4th January, 1999, at the latest, that is on the expiry of the 60 days after the filing of the Notice of Appeal.
In the absence of any explanation or material before me I am unable to exercise my discretion in favour of the applicant. Where there is no explanation, there can be no indulgence.
As to whether the applicant has been diligent and free from dilatory practices, is a matter that has not been discharged to my satisfaction.
This application must fail and is dismissed with costs.
Dated and delivered at Nairobi this 30th day of September, 1999.
P. K. TUNOI
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR