[1999] KECA 8 (KLR)
The court declined to exercise its discretion to extend time for lodging the intended appeal because the applicant had failed to comply with a previous court order granting a 30-day extension and had delayed for over five years without sufficient explanation. The court found the applicant's reasons for delay...
Source-derived case information.
- Citation
- [1999] KECA 8 (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 Application 32 of 1998
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Extension of Time, Appeals Process, Court Discretion
- 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 should be granted an extension of time to lodge an intended appeal to the Court of Appeal.
- 2 Whether the applicant's delay in filing the appeal is excusable.
Ratio Decidendi
The court declined to exercise its discretion to extend time for lodging the intended appeal because the applicant had failed to comply with a previous court order granting a 30-day extension and had delayed for over five years without sufficient explanation. The court found the applicant's reasons for delay inadequate and considered the application to be characterized by dilatoriness. As a result, the application for extension of time was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for extension of time to lodge the intended appeal is dismissed.
- The applicant shall pay the costs of this application to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
Civil Appli 32 of 1998
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 non-compliance 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 to the respondent.
Dated and delivered at Nairobi this 2nd day of February, 1999.
J.E. GICHERU
.............
JUDGE OF APPEAL