[1999] KECA 100 (KLR)
The court found that the applicant had not provided sufficient or satisfactory reasons for the inordinate delay of over five years in seeking to lodge the intended appeal. The applicant's financial incapacity and subsequent assistance from Kituo Cha Sheria did not adequately explain the failure to comply with the...
Source-derived case information.
- Citation
- [1999] KECA 100 (KLR)
- Parties
- Applicant: Mungai Muna; Respondent: Esmael N. Mungai
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 32 of 1998
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Out of Time, Court of Appeal Rules, Discretionary Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mungai Muna
Applicant
Esmael N. Mungai
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in lodging the intended appeal out of time.
- 2 Whether the court should exercise its discretion under rule 4 of the Court of Appeal Rules to extend time for filing the appeal.
Ratio Decidendi
The court found that the applicant had not provided sufficient or satisfactory reasons for the inordinate delay of over five years in seeking to lodge the intended appeal. The applicant's financial incapacity and subsequent assistance from Kituo Cha Sheria did not adequately explain the failure to comply with the previous extension granted in 1993. The court emphasized that the discretion to extend time under rule 4 of the Court of Appeal Rules is not automatic and must be exercised judiciously, taking into account the length of delay, reasons for the delay, and the overall conduct of the applicant. Given the applicant's dilatoriness and noncompliance with prior court orders, the court...
Court Disposition
application dismissed with costs
Orders
- The application for extension of time within which to lodge the intended appeal is dismissed with costs.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (Coram: Gicheru, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 32 OF 1998 BETWEEN
MUNGAI MUNA............................................APPLICANT AND ESMAEL N. MUNGAI...............................RESPONDENT
(Application for leave to appeal out of time in an intended appeal from the judgment and decree of the High Court of Kenya at Nairobi (Akiwumi, J.) dated 5th June, 1989
in
H.C.C.C. NO. 2770 OF 1981) ***************** RULING:
In this application, the applicant has sought extension of time within which to lodge his intended appeal to this Court. On 18th October, 1993, time to lodge the record of the applicant's intended appeal to this Court was extended by 30 days from the date hereinabove mentioned. According to the applicant's supporting affidavit to the present application, he was financially incapacitated and was therefore unable to lodge the record of his intended appeal within the extended time. He now has sought and obtained assistance from Kituo Cha Sheria which has agreed to prepare the notice and the record of appeal for him if time in respect thereof is extended. It is now over five years since the time for lodging the record of the applicant's intended appeal was granted on 18th October, 1993. On 19th September, 1997, his notice of appeal was struck out by this Court for the reason of his noncompliance with the order of the single judge of this Court dated 18th October, 1993 extending time by 30 days within which he was to lodge his intended appeal. His present application does not seek extension of time within which to lodge the notice of appeal. In the circumstances and in view of the dilatoriness in the applicant's present application, I decline to exercise my discretion under rule 4 of the Court of Appeal Rules in favour of the applicant. In the result, the applicant's application for extension of time within which to lodge his intended appeal to this Court against the decision of the superior court given on 5th June, 1989 is dismissed with costs.
Dated and delivered to respondent at Nairobi this 2nd day of February 1999
J.E. GICHERU ............. JUDGE OF APPEAL