[1999] KECA 54 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the delay in filing the notice and record of appeal. The delay was twofold: first, in obtaining instructions from the insurers, and second, in filing the application after instructions were received. The applicant's counsel admitted...
Source-derived case information.
- Citation
- [1999] KECA 54 (KLR)
- Parties
- Applicant: M.D. Patel; Respondent: Peter Ndungu Ndirangu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 205 of 1999
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Process, Delay in Filing, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M.D. Patel
Applicant
Peter Ndungu Ndirangu
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether sufficient cause was shown for the delay in filing the notice and record of appeal out of time.
- 2 Whether the court should exercise its discretion to extend time for filing the appeal.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the delay in filing the notice and record of appeal. The delay was twofold: first, in obtaining instructions from the insurers, and second, in filing the application after instructions were received. The applicant's counsel admitted that not filing the notice of appeal earlier was his own mistake, but the court held that this was not a mistake but rather inaction or lack of desire to appeal. The court emphasized that the discretion to extend time is not automatic and must be exercised only where sufficient cause is shown. In the absence of any reasonable explanation for the delay, the court declined to...
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file and serve notice and record of appeal is dismissed with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NYERI CORAM: SHAH, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI 205 OF 1999 (NYR 16/99) BETWEEN
M.D. PATEL MATHEW MUTHOGA GIKONYO ..............................APPLICANTS AND PETER NDUNGU NDIRANGU ...............................RESPONDENT
(Application for extension of time to file and serve notice & record of appeal from a judgment of the High Court of Kenya at Nyeri (Juma J) dated 11th March, 1999
in H.C.C.C. NO. 198 OF 1997) ****************** R U L I N G
I have, before me, an application brought under rule 4 of the Rules of this Court, for extension of time to lodge a notice of appeal and record of appeal out of time.
The judgment of the superior court (Juma, J) was delivered on 11th March, 1999. The applicant's counsel wrote to the applicant's insurers advising them of the fate of the suit by a letter dated 15th March, 1999, enclosing a copy of the relevant judgment. In that letter the said advocates informed the insurers that they would notify them of the figure of costs when taxed. The advocates also enclosed the final fee-note. The insurers responded some two months later saying that in their view the damages awarded were on the higher side and instructed the advocates to appeal.
Lodgment of a notice of appeal is a matter of course. A careful advocate would lodge the same ex abundanti cautela.In this case the advocates did not say that they advised filing of an appeal. It was the insurers who thought an appeal ought to be filed. They took nearly two months to decide that.
The reasons for delay in regard to instructions to lodge the notice of appeal have not been shown to my satisfaction. Counsel, when asked why he did not lodge the notice of appeal as a matter of abundant caution, simply stated that it was his mistake. I do not think it was a mistake. Putting it simply it was either inaction or no desire to appeal.
But the matter does not stop there. This application was filed some one month and 23 days after receipt of instructions to lodge an appeal. There is no explanation at all for this delay.
In these circumstances, I am not persuaded to exercise the almost unfettered discretion that I have to extend time as sought. This application is dismissed with costs.
Dated and delivered at Nyeri this 27th day of October, 1999.
A. B. SHAH
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JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR