[2011] KECA 30 (KLR)
The Court held that the applicant's request for extension of time to file a notice of appeal and record of appeal was premature and superfluous because he did not have leave to appeal, which was a prerequisite for the intended appeal. The High Court had already declined to grant leave, and the applicant neither...
Source-derived case information.
- Citation
- [2011] KECA 30 (KLR)
- Parties
- Applicant: Michael Wachira Gakuo; Respondent: Elizabeth Wamuyu Githinji
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 71 of 2010
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Leave to Appeal, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Wachira Gakuo
Applicant
Elizabeth Wamuyu Githinji
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant is entitled to an extension of time to file a notice of appeal and record of appeal out of time.
- 2 Whether the application is premature in the absence of leave to appeal.
Ratio Decidendi
The Court held that the applicant's request for extension of time to file a notice of appeal and record of appeal was premature and superfluous because he did not have leave to appeal, which was a prerequisite for the intended appeal. The High Court had already declined to grant leave, and the applicant neither appealed that refusal nor sought leave from the Court of Appeal under the relevant rules. Without leave, there was no right of appeal, and thus no basis for granting an extension of time. The application was therefore dismissed as incompetent.
Court Disposition
application dismissed
Orders
- The application for extension of time to file a notice of appeal and record of appeal out of time is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI
(CORAM: VISRAM, J.A (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 71 OF 2010 (NYR. 7/2010)
BETWEEN
MICHAEL WACHIRA GAKUO ................................................ APPLICANT
AND
ELIZABETH WAMUYU GITHINJI ....................................... RESPONDENT
(Application for Extension of time to file a notice of appeal and record of appeal out of time in an intended appeal from the ruling and order of the High Court of Kenya at Nyeri (Makhandia, J) dated 22nd July, 2009
In
H.C. Succession Cause No. 244 of 2009)
*********************************
RULING
This application, made under rule 4 of the Court of Appeal Rules, for extension of time to file an appeal from the ruling and order of the High Court (Makhandia, J ) is premature.
The ruling in the case before the High Court was delivered on 22nd July, 2009, and a notice of appeal was indeed filed within time on 4th August, 2009, and served, also within time, on 6th August, 2009. However, it was then that the applicant realized that his appeal to this Court did not lie as of right, and that he needed leave to appeal. Hence, on 7th September, 2009, he filed an application before the High Court seeking leave to appeal to this Court, out of time. By a ruling dated 27th January, 2010, that Court (Makhandia, J) declined to grant the leave sought. The applicant did not prefer an appeal against that decision, nor applied to this Court under rule 39 of the Rules of this Court, to seek such leave.
Accordingly, as it now stands, the applicant has no right of appeal before this Court, and, therefore, this application for extension of time to file his appeal is premature, and superfluous, and is accordingly dismissed. It is so ordered.
Dated and delivered at Nyeri this 28th day of October, 2011.
ALNASHIR VISRAM
......................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.