[1999] KECA 36 (KLR)
The court refused to exercise its discretion to extend time for filing a notice of appeal because the applicant failed to provide any material, explanation, or justification for the non-compliance with the procedural rules. The court emphasized that the burden rests on the applicant to demonstrate reasons for the...
Source-derived case information.
- Citation
- [1999] KECA 36 (KLR)
- Parties
- Appellant: Major Joseph Mweteri Igweta; Respondent: Mukira M'Ethara; Respondent: The Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 196 of 1999
- Procedural Posture
- Civil Appeal / Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Court Discretion, Non Compliance With Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Major Joseph Mweteri Igweta
Appellant
Mukira M'Ethara
Respondent
The Attorney General
Respondent
Procedural Posture
Civil Appeal / 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 procedural rules can be excused in the absence of explanation or justification.
Ratio Decidendi
The court refused to exercise its discretion to extend time for filing a notice of appeal because the applicant failed to provide any material, explanation, or justification for the non-compliance with the procedural rules. The court emphasized that the burden rests on the applicant to demonstrate reasons for the court to grant such indulgence, and in the absence of any explanation, the application must fail. The principle that discretion cannot be exercised in a vacuum, and that some material must be placed before the court, was determinative. As no such material was provided, 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
22 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CIVIL APPEAL NO.53 OF 1993
MAJOR JOSEPH MWETERIIGWETA.............................APPELLANT
VERSUS
1. MUKIRA M'ETHARA
2. THE ATTORNEY
GENERAL...........................................................RESPONDENTS
(Being an appeal from the ruling of the High Court of
Kenya at Nairobi (Justice Shields) dated 25th
October, 1990
in
H.C.C.A. NO. 269 OF 1989)
O R D E R
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