[1996] KECA 125 (KLR)
The Court found that the applicant failed to provide a satisfactory account for the seven-month delay between the striking out of the appeal and the filing of the application for extension of time. Furthermore, the Court held that the applicant had no right to seek review before the High Court, and therefore had no...
Source-derived case information.
- Citation
- [1996] KECA 125 (KLR)
- Parties
- Applicant: Nelson Wahome Kiriungi; Respondent: Nyawira Ndiuni
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 188 of 1996
- Procedural Posture
- Civil Application / Reference Under Rule 54(1)(b) of the Court of Appeal Rules After Dismissal of Application for Extension of Time by a Single Judge
- Outcome
- application dismissed with costs
- Judges
- JE Gicheru, AM Akiwumi
- Legal Topics
- Extension of Time, Appeals Out of Time, Review of Orders, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nelson Wahome Kiriungi
Applicant
Nyawira Ndiuni
Respondent
Procedural Posture
Civil Application / Reference Under Rule 54(1)(b) of the Court of Appeal Rules After Dismissal of Application for Extension of Time by a Single Judge
Legal Issues
- 1 Whether the applicant provided a satisfactory explanation for the delay in filing the notice of appeal and record of appeal out of time.
- 2 Whether the applicant had a right to seek review and consequently a right to appeal from the refusal of review by the High Court.
Ratio Decidendi
The Court found that the applicant failed to provide a satisfactory account for the seven-month delay between the striking out of the appeal and the filing of the application for extension of time. Furthermore, the Court held that the applicant had no right to seek review before the High Court, and therefore had no right to appeal from the refusal of review. The Court concluded that the single judge exercised his discretion correctly in dismissing the application for extension of time, and there were no grounds to interfere with that decision.
Court Disposition
application dismissed with costs
Orders
- The application for leave to file notice of appeal and an appeal out of time is dismissed with costs.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, AKIWUMI & LAKHA, JJ.A.)
CIVIL APPLICATION NO. NAI. 188 OF 1996 (70/96UR)
BETWEEN
NELSON WAHOME KIRIUNGI..................APPLICANT
AND
NYAWIRA NDIUNI................................RESPONDENT
(Application for leave to file notice of appeal and an appeal out of time in an appeal from the rulings and findings at the High Court of Kenya at Nyeri (Justice Tunoi and Lady Justice Ang'awa
in
H.C.C.C. NO. 282 OF 1987)
*****************
RULING OF THE COURT
This is a reference under rule 54 (1)(b) of the Rules of this Court by the unsuccessful applicant whose application for extension of time to file a notice of appeal and record of appeal was dismissed by a single judge of this Court (Omolo, J.A.) by his ruling of June 28, 1996. The single judge dismissed the application mainly on two grounds: First, he did not find in the material before him a satisfactory account for the delay between October, 1995 when the appeal was struck out and June 12, 1996 when the Notice of Motion which the single Judge dismissed was made. Nor are we satisfied either with the account of the delay during these seven months. Secondly, the intended appeal, as the notice of appeal shows, was from the decision/ruling of the Honourable Justice Ang'awa dated September 17, 1993 which arose from a notice 1 of motion under order 44 rule(1) of the Civil Procedure Rules which itself was from a review of the orders made on March 11, 1993.
This latter order was made pursuant to another application of review. The applicant had no right to apply for a review to Ang'awa, J. It follows that the applicant has no right to appeal from her refusal to undertake the review.
Having given this matter our most anxious consideration, we do not find that the learned single judge erred in principle or otherwise on any of the two limbs on which he refused to exercise his discretion. We are satisfied that in all the circumstances, he was right. There are no grounds which would warrant an interference with his decision.
For the reasons above stated, this application fails and is dismissed with costs.
Dated and delivered at Nairobi this 8th day of October, 1996.
J.E. GICHERU
...........................
JUDGE OF APPEAL
A.M. AKIWUMI
.............................
JUDGE OF APPEAL
A.A. LAKHA
.............................
JUDGE OF APPEAL
I certify that this is a true
Copy of the original
DEPUTY REGISTRAR