[1997] KECA 169 (KLR)
The court found that the delay in bringing the application for extension of time was over 30 days and was attributed to an oversight by the applicant's counsel. The applicant was represented by counsel at the time the appeal was struck out and was therefore aware of the need to act promptly. The court held that...
Source-derived case information.
- Citation
- [1997] KECA 169 (KLR)
- Parties
- Applicant: Mwandikwa Maangi; Applicant: Kaswii Musava Maangi; Respondent: Nyamai Musili
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 70 of 1997
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Appeal Procedure, Notice of Appeal, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwandikwa Maangi
Applicant
Kaswii Musava Maangi
Applicant
Nyamai Musili
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in seeking extension of time to file a fresh Notice of Appeal.
- 2 Whether the court should exercise its discretion to extend time in light of the applicant's explanation for the delay.
Ratio Decidendi
The court found that the delay in bringing the application for extension of time was over 30 days and was attributed to an oversight by the applicant's counsel. The applicant was represented by counsel at the time the appeal was struck out and was therefore aware of the need to act promptly. The court held that counsel's own dilatoriness does not constitute an excusable mistake and cannot be relied upon as a basis for seeking the court's discretion. In the absence of sufficient and excusable reason for the delay, the court declined to exercise its discretion to extend time for filing a fresh Notice of Appeal.
Court Disposition
application dismissed
Orders
- The application for extension of time to file a fresh Notice of Appeal is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: BOSIRE, AG J.A.(IN CHAMBERS)
CIVIL APPLICATION NO. NAI 70 OF 1997
BETWEEN
MWANDIKWA MAANGI
KASWII MUSAVA MAANGI ............................... APPLICANTS
AND
NYAMAI MUSILI ...................................... RESPONDENT
(Being an application for extension of time in an intended appeal from a ruling of the High Court of Kenya at Machakos (Justice Osiemo) dated 4th August 1995
in H.C.C.C. No.156 of 1991) *******************
RULING
The applicant's appeal is to wit Civil Appeal No.52 of 1996, was struck out on 5th March 1997, for being incompetent having been filed out of time without a prior order extending time. The applicant would like to restart the appellate process and has therefore brought this application under rule 4 of the Rules of this court for extension of time to file a fresh Notice of Appeal. He is perfectly entitled to do so. This application was filed in court on 8th April 1997, more than a month after the applicant's appeal was struck out. The explanation given from the bar is that the delay was due to an oversight. Rule 74(2) of the Rules prescribe a period of 14 days within which an intending appellant may file a Notice of Appeal against a decision of the superior court. The period is regarded as reasonable for a litigant seriously minded to challenge a decision against him. The delay in bringing this application is more than 30 days. The applicant was represented by Counsel at the hearing of his appeal which was struck out. It cannot therefore be said that he was unaware of the fact of the appeal being struck out.
Moreover, Counsel for the applicant is not entitled to rely on his own dilatoriness as a basis for seeking the discretion of this court to extend time. Such acts cannot be said to fall within those mistakes of Counsel which are excusable. In the above circumstances and notwithstanding the fact that the respondent did not appear to oppose the application, I am unable to exercise my discretion in favour of extension of time to lodge a fresh Notice of Appeal. I dismiss the application but with no order as to costs.
Dated and delivered at Nairobi this 27th day of June 1997.
S.E.O. BOSIRE
...................
AG. JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR