[1999] KECA 18 (KLR)
The court refused to exercise its discretion to extend time because the applicant failed to provide any material or explanation for the non-compliance with the rules. The absence of an explanation or evidence meant the applicant did not discharge the burden required to justify the court's indulgence. The established...
Source-derived case information.
- Citation
- [1999] KECA 18 (KLR)
- Parties
- Applicant: Major Joseph Mweteri Igweta; Respondent: Mukira M'Ethare; Respondent: Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 107 of 1993
- Procedural Posture
- Miscellaneous Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Process, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Major Joseph Mweteri Igweta
Applicant
Mukira M'Ethare
Respondent
Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient material to justify the court's exercise of discretion to extend time for filing a notice of appeal.
- 2 Whether non-compliance with the rules can be excused in the absence of explanation or material evidence.
Ratio Decidendi
The court refused to exercise its discretion to extend time because the applicant failed to provide any material or explanation for the non-compliance with the rules. The absence of an explanation or evidence meant the applicant did not discharge the burden required to justify the court's indulgence. The established principle is that, where there is no explanation for non-compliance, the court will not grant an extension of time. Accordingly, the application was dismissed with costs.
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
21 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI
civil misc appl 107 of 93
MAJOR JOSEPH MWETERI IGWETA .............................APPLICANT
AND
MUKIRA M'ETHARE .................................... 1STRESPONDENT
ATTORNEY GENERAL ................................... 2NDRESPONDENT
(Application for extension of time within which to file and serve Notice of Appeal from the Ruling of (Hon. Justice Shields) dated the 25th of October, 1990
R U L I N G
This is an application under rule 4 of the Rules of this Court for an extension of time to file a notice of appeal. The appeal No. 53/93 filed by the applicant was on 27th July, 1999 struck out for failure to comply with Rule 85(1)(c) in that primary documents by way of pleadings were not included in the record.
As I set out to exercise my discretion I must at the outset confess that there is no material before me on which I can do so. As was said by Privy Council in RATNAM V. CUMARASAMY [1964] 3 ALL E.R. 933 there must be some material before the Court to enable its discretion to be exercised.
See also Balcombe LJ and Mann LJ in SAVILL V. SOUTHEND HEALTH AUTHORITY 1995 1 WLR 1254 at 1259. I do not know why there was non-compliance with the rules. Mistake or accident or inadvertence which may provide a basis for an extension are not relied upon. If documents can be traced there must be some explanation why they were not traced earlier. There is no explanation. In my judgment, once there is non-compliance the burden is on the party seeking indulgence to satisfy the court why the discretion should nevertheless be exercised in his favour. This burden unfortunately has not been discharged. The rule is where there is no explanation, there shall be no indulgence.
In the result, I refuse to exercise any discretion to extend time as prayed. Accordingly, the application is dismissed with costs.
Dated and delivered at Nairobi this 9th day of August,
1999.
A.A. LAKHA
.................
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR