[1996] KECA 169 (KLR)
The court dismissed the application for extension of time because the applicant failed to provide any explanation for the delay in serving the Notice of Appeal and filing the record of appeal. The judge emphasized that although the court's discretion to enlarge time is unfettered, it must be exercised on the basis...
Source-derived case information.
- Citation
- [1996] KECA 169 (KLR)
- Parties
- Applicant: Michael Mwanda Awandu; Respondent: The Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 151 of 1994
- Procedural Posture
- Civil Application / Application for Extension of Time to File and Serve Notice of Appeal and Record of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Notice of Appeal, Record of Appeal, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Mwanda Awandu
Applicant
The Attorney General
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File and Serve Notice of Appeal and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in serving the Notice of Appeal and filing the record of appeal out of time.
- 2 Whether the court should exercise its discretion to enlarge time for the applicant to serve the Notice of Appeal and file the record of appeal.
Ratio Decidendi
The court dismissed the application for extension of time because the applicant failed to provide any explanation for the delay in serving the Notice of Appeal and filing the record of appeal. The judge emphasized that although the court's discretion to enlarge time is unfettered, it must be exercised on the basis of sufficient material. In this case, neither the applicant nor his advocate offered any reason for the lapse of time since July 1992, nor did they indicate when the default was discovered. The absence of any explanation or material to justify the delay led the court to decline to exercise its discretion in favour of the applicant. Accordingly, the application was dismissed with...
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
26 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: LAKHA, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 151 OF 1994
BETWEEN
MICHAEL MWANDA AWANDU……….……………..APPLICANT
AND
THE ATTORNEY GENERAL……….……………….RESPONDENT
(Application for extension of time to lodge Record of Appeal
and serve Notice of Appeal out of time in an intended appeal
from a Judgment of the High Court of Kenya at Nairobi
(Justice Mwera)
dated 25th June, 1992
in
H.C.C.C. NO. 3554 OF 1982)
****************
RULING
This is an application under rule 4 of the Rulos of the Court seeking enlargement of time to file Notice of Appeal from the judgment of Mwera, J. delivered on 25th June, 1992 and to serve the same out of time. It also seeks enlargement of time to file the record of appeal.
A Notice of Appeal however was filed on 7th July, 1992 within time. Therefore the first prayer of the application does not lie. it was not served within time. No reason is given why this was not done. Nor does Mr. Chebii appearing for the applicant know when the default was discovered to enable him to limit the delay, if any, in filing this application which was not done until 20th July, 1994. No explanation has been given for the lapse of time since July 1992. In the circumstances although my discretion is unfettered i do not have before me any material to do so. I am accordingly disinclined to exercise my discretion. The application, is therefore, dismissed with costs.
Dated and delivered at Nairobi this 17th day of December, 1996.
A.A. LAKHA
………………..
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR