[1990] KECA 24 (KLR)
The court found that the applicant failed to provide a credible explanation for the delay in filing the notice of intended appeal. The evidence showed that the applicant's advocate continued to act on his behalf after the ruling, filing applications for review and stay, which contradicted the claim of a breakdown in...
Source-derived case information.
- Citation
- [1990] KECA 24 (KLR)
- Parties
- Applicant: Macharia Kaburu; Respondent: Beth Wanjiru Karimira
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 155 of 1989
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed with costs
- Judges
- JRO Masime
- Legal Topics
- Extension of Time, Appeals Process, Arbitration Award Challenge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Macharia Kaburu
Applicant
Beth Wanjiru Karimira
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the inordinate delay in filing the notice of intended appeal.
- 2 Whether the court should exercise its discretion to extend time for lodging the notice of appeal.
Ratio Decidendi
The court found that the applicant failed to provide a credible explanation for the delay in filing the notice of intended appeal. The evidence showed that the applicant's advocate continued to act on his behalf after the ruling, filing applications for review and stay, which contradicted the claim of a breakdown in their relationship. The court concluded that the decision to appeal was made after an inordinate delay and was not justified by the reasons advanced. Consequently, the court declined to exercise its discretion to extend time, holding that the applicant had not met the threshold for such relief under Rule 4 of the Court of Appeal Rules.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file the notice of intended appeal is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: MASIME, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 155 OF 1989
BETWEEN
MACHARIA KABURU....................................................................APPLICANT
AND
BETH WANJIRU KARIMIRA........................................................RESPONDENT
(An application for extension of time to file an intended
appeal from an order of the High Court of Kenya at
Nairobi (Mr. Justice Shield, J) dated 22/7/88 in
H.C.C.C. NO. 1517 OF 1985)
*****************
R U L I N G
This is an application under Rule 4 of this Court's Rules for extension of the time limited by Rule 74 for the lodging of a notice of intended appeal from the ruling of the superior court dated the 22nd July, 1988. This application was itself filed on 15th September, 1989 that is to say there had been a delay of more than one year. In support of the application an0 affidavit has been sworn tot he effect that a disagreement occurred between the applicant and his then advocate which caused the delay.
Two affidavits have been filed in reply the effect of which is that the applicant's alleged reason for the delay is not correct. It appears that after the ruling of 22nd July, 1988 the applicant's counsel M/S Kamere & Co., continued to act for him and filed an application for review of the ruling on 15th August, 1988 and for stay of execution and injunction on 7th November, 1988. Copies of the said applications were annexed to the replying affidavits. The learned counsel for the Respondent therefore submitted that the decision to appeal was an after thought and the delay to file the Notice of Appeal was not due to the alleged disagreement between the applicant and his previous counsel.
Further I perused the copy of the proceedings before the superior court and found that they concerned an arbitration award. After the award was filed and the parties notified thereof the applicant sought to have the award set aside. That application was dismissed but rather than appeal the applicant a review and stay. The decision to appeal appears to have been made after a delay of more than a year.
Upon consideration of all the circumstances and the nature of the matter. I am of the view that the discretion of the court should not be exercised in favour of the applicant and I refuse to do so. Accordingly I refuse the application and dismiss it with costs.
Dated and delivered at Nairobi this 27th day of June, 1990
J.R.O. MASIME
......................
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR.