[1997] KECA 311 (KLR)
The court held that the applicants failed to provide any material or satisfactory explanation for the inordinate delay of about eight months in filing the application for extension of time. The purported reason that leave to appeal was required was incorrect, as Rule 74(4) of the Court of Appeal Rules makes it clear...
Source-derived case information.
- Citation
- [1997] KECA 311 (KLR)
- Parties
- Applicant: Dedan Mahira Ritho; Applicant: Lucy Nyambura Ritho; Respondent: Public Trustee; Respondent: Monica Moi Ritho
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 369 of 1996
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Notice of Appeal, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dedan Mahira Ritho
Applicant
Lucy Nyambura Ritho
Applicant
Public Trustee
Respondent
Monica Moi Ritho
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicants have provided sufficient reason for the delay in filing the Notice of Appeal out of time.
- 2 Whether the court should exercise its discretion to grant an extension of time under Rule 4 of the Court of Appeal Rules.
Ratio Decidendi
The court held that the applicants failed to provide any material or satisfactory explanation for the inordinate delay of about eight months in filing the application for extension of time. The purported reason that leave to appeal was required was incorrect, as Rule 74(4) of the Court of Appeal Rules makes it clear that such leave is not necessary before filing a Notice of Appeal. Furthermore, the leave allegedly obtained was itself granted out of time and was therefore invalid. In the absence of any credible explanation or supporting material for the delay, the court declined to exercise its discretion in favour of the applicants and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file the Notice of Appeal is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (CORAM: LAKHA, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 369 OF 1996
BETWEEN
DEDAN MAHIRA RITHO ............................... 1ST APPLICANT LUCY NYAMBURA RITHO .............................. 2ND APPLICANT AND PUBLIC TRUSTEE ................................... 1ST RESPONDENT MONICA MOI RITHO ................................. 2ND RESPONDENT
(An application for extension of time to file Notice of Appeal out of time in an intended appeal from a Judgment of the High Court of Kenya at Nairobi (Justice Githinji) dated 25th March, 1996
in H.C.SUCC.C. NO. 320 OF 1991) *******************
R U L I N G
This is an application under Rule 4 of the Rules of this Court seeking an extension to file the Notice of Appeal and the Record of Appeal out of time.
The reason why the Notice of Appeal was not filed within the prescribed time is stated by Mr. Amuga to be that he wanted to get leave to appeal before doing so. Rule 74(4) provides this is not necessary.
In any event the leave to appeal allegedly obtained in April 1996 was granted out of time and is not valid.
There is no material before me on which I can have my discretion to grant this application. The application was filed on 26th November, 1996 against a Ruling delivered on 25th March, 1996 about eight months later. No explanation or record has been given from this inordinate delay.
The application fails and is dismissed with costs.
Dated and delivered at Nairobi this 11th day of June, 1997.
A.A. LAKHA
.................
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR