[1999] KECA 12 (KLR)
The court found that, after excluding the supplementary affidavit for non-compliance with procedural rules, the applicant's remaining affidavit did not provide any explanation for the delay in filing the record of appeal. The absence of a satisfactory explanation meant that the applicant failed to demonstrate...
Source-derived case information.
- Citation
- [1999] KECA 12 (KLR)
- Parties
- Applicant: Kenya National Assurance Co. Ltd; Respondent: Joseph M. Mbasu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 38 of 1999
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application dismissed with costs
- Judges
- JE Gicheru
- Legal Topics
- Extension of Time, Appeals Process, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Assurance Co. Ltd
Applicant
Joseph M. Mbasu
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the record of appeal within the prescribed period.
- 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, after excluding the supplementary affidavit for non-compliance with procedural rules, the applicant's remaining affidavit did not provide any explanation for the delay in filing the record of appeal. The absence of a satisfactory explanation meant that the applicant failed to demonstrate sufficient cause for the delay. Consequently, the court declined to exercise its discretion under rule 4 of the Court of Appeal Rules to grant the extension of time sought by the applicant. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The applicant's application for extension of time is dismissed.
- Costs assessed at K.Shs. 3,000/- are payable to the respondent within 30 days from the date of the ruling, failing which execution to issue.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI
Civil Appli 38 of 1999
KENYA NATIONAL ASSURANCE CO. LTD............................................................................APPLICANT
AND
JOSEPH M. MBASU..............................................................................................................RESPONDENT
(An application for extension of time in an intended appeal from a judgment of the High Court of Kenya at Nairobi (Amin, J.) dated 18th June, 1997
in
H.C.C.A. NO. 122 OF 1993)
*****************
RULING:
At the hearing of this application on 22nd April, 1999 the applicant's supplementary affidavit was excluded from the record of the said application for the reason that it was filed without the requisite leave or otherwise in compliance with rule 43(2) of the Court of Appeal Rules, hereinafter called the Rules. Resulting from that exclusion, the applicant relied on the supporting affidavit of Johnson Dedan Murimi. In that affidavit, the applicant's failure to lodge the record of appeal within the prescribed period was because counsel dealing with the matters concerning the applicant had left the firm of Murimi & Company, Advocates without handing over the applicant's file. It is not clear to whom the file in question was to be handed over. the present application was filed on 16th February, 1999 and from its record, the Notice of Appeal was lodged on 26th June, 1997. After the exclusion of the supplementary affidavit referred to above, there is nothing in the supporting affidavit to the applicant's application which explain the delay in filing the record of appeal within the prescribed period. I am therefore unable to exercise my discretion in favour of the applicant under rule 4 of the Rules. In the result, the applicant's application is dismissed with costs assessed at K.Shs. 3,000/- and payable to the respondent within the next 30 days from the date of this ruling failing which execution to issue.
Dated and delivered at Nairobi this 26th day of April, 1999.
J.E. GICHERU
...............
JUDGE OF APPEAL
I certify that this isa true copy of the original.
DEPUTY REGISTRAR