[1979] KECA 10 (KLR)
The court held that the delay in lodging the appeal was entirely attributable to the court's delay in providing the proceedings, and not to any fault of the applicant. While the applicant did not comply with the proviso to rule 81 by obtaining a certificate of delay, this was not a mandatory prerequisite for seeking...
Source-derived case information.
- Citation
- [1979] KECA 10 (KLR)
- Parties
- Applicant: Mehrunnissa; Respondent: Mohamed Parvez
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 5 of 1979
- Procedural Posture
- Civil Application / Application for Extension of Time to Lodge Appeal
- Outcome
- Application allowed. Time for lodging the appeal extended by forty days from the date of the ruling. Costs of the application to be the respondent’s in any event.
- Judges
- KD Potter
- Legal Topics
- Extension of Time, Court Discretion, Certificate of Delay, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mehrunnissa
Applicant
Mohamed Parvez
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to Lodge Appeal
Legal Issues
- 1 Whether the applicant is entitled to an extension of time to lodge an appeal where delay was caused by the court and not the applicant.
- 2 Whether compliance with the proviso to rule 81 is mandatory before seeking extension under rule 4.
- 3 Whether failure to provide information about the ruling or grounds of appeal bars the exercise of discretion to extend time.
Ratio Decidendi
The court held that the delay in lodging the appeal was entirely attributable to the court's delay in providing the proceedings, and not to any fault of the applicant. While the applicant did not comply with the proviso to rule 81 by obtaining a certificate of delay, this was not a mandatory prerequisite for seeking an extension under rule 4. The court retains discretion to grant an extension of time where sufficient reason is shown, particularly where the delay is not the applicant's fault. Although the applicant did not provide information about the ruling or grounds of appeal, the court exercised its discretion in favour of the applicant, relying on the principle that failure to...
Court Disposition
Application allowed. Time for lodging the appeal extended by forty days from the date of the ruling. Costs of the application to be the respondent’s in any event.
Orders
- Time for lodging the appeal is extended by forty days from 6th July 1979.
- Costs of this application will be the respondent’s in any event.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Potter JA (in chambers))
CIVIL APPLICATION NO NAI 5 OF 1979
BETWEEN
MEHRUNNISSA..................................................................APPLICANT
AND
MOHAMED PARVEZ ...................................................RESPONDENT
JUDGMENT
This is an application under rule 4 of the rules of this Court for an extension of time for lodging an appeal against a ruling of the High Court in civil suit 927 of 1977.
The applicant has not been guilty of any delay. The delay that has occurred has been entirely the fault of the Court.
The ruling was delivered on 18th September 1978. On 28th September the applicant’s advocate applied by letter to the registrar of the High Court requesting a copy of the proceedings. At intervals three letters of reminder were sent to the registrar. The copy was received from the registrar on 23rd March 1979. This application was lodged in the Registry of the Court of Appeal on 27th March 1979. I heard the application on 28th June. Again, the delay in setting this application down for hearing is in no way the fault of the applicant.
Mr Vohra for the respondent resists the application on the ground that the applicant did not comply with the proviso to rule 81 by obtaining a certificate of delay from the registrar; for if she had done so there would have been an automatic extension of time and this application would have been unnecessary. He submitted that the proviso to rule 81 must be complied with before rule 4 can be brought into play.
I do not agree with this submission. In my view rule 81 is not so worded that in any case of delay the intending appellant is required to obtain a certificate of delay and take advantage of the proviso. If the intending appellant does not do so, he may still apply for an extension of time under rule 4; but he will then have to show “sufficient reason”. And he runs the risk of failure.
The applicant has given me no information whatsoever about the ruling against which she wishes to appeal, or about the grounds of appeal. The general rule of practice (laid down in Bhaichand Bhagwanji Shah v Jamnadas & Co Ltd[1959] EA 838, 840, is that:
An applicant for an extension of time under rule 9 [now rule 4] should support his application by a sufficient statement of the nature of the judgment and of his reasons for desiring to appeal against it to enable the Court to determine whether or not a refusal of the application would appear to cause injustice.
However, it was held in Balwantrai D Bhatt v Tejwant Singh[1962] EA 497, that while advocates would be well advised to comply with that rule in all cases, failure to comply with that rule will not deprive the Court of its discretion to grant an extension of time where the delay is attributable entirely to the Courts and is in no way the fault of the applicant.
In the exercise of my discretion I order that the time for lodging the appeal in this case be extended by forty days from today.
This application would have been unnecessary if the applicant’s advocate had complied with the proviso to rule 81 (1) and with rule 81(2).
Accordingly the costs of this application will be the respondent’s in any event.
Order accordingly.
Dated and delivered at Nairobi this 6th day of July 1979.
K.D POTTER
................
JUDGE OF APPEAL