[2009] KECA 333 (KLR)
The Court of Appeal held that the applicant failed to demonstrate any error or improper exercise of discretion by the single judge in refusing to grant an extension of time to file and serve the notice of appeal. The full bench found that the issues of prejudice, delay, and the applicant's inability to raise funds...
Source-derived case information.
- Citation
- [2009] KECA 333 (KLR)
- Parties
- Applicant: Njiru Kiriragia; Respondent: Silvester Njiru Njeru
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 301 of 2007
- Procedural Posture
- Extension of Time Application / Reference From Single Judge to Full Bench
- Outcome
- reference dismissed with costs
- Legal Topics
- Extension of Time, Exercise of Discretion, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njiru Kiriragia
Applicant
Silvester Njiru Njeru
Respondent
Procedural Posture
Extension of Time Application / Reference From Single Judge to Full Bench
Legal Issues
- 1 Whether the single judge erred in dismissing the application for extension of time to file and serve notice of appeal.
- 2 Whether the applicant demonstrated sufficient cause for the delay in filing the appeal.
- 3 Whether the exercise of discretion by the single judge was improper or based on wrong principles.
Ratio Decidendi
The Court of Appeal held that the applicant failed to demonstrate any error or improper exercise of discretion by the single judge in refusing to grant an extension of time to file and serve the notice of appeal. The full bench found that the issues of prejudice, delay, and the applicant's inability to raise funds had been adequately considered and rejected by the single judge. As there was no legal basis to interfere with the exercise of discretion, the reference was dismissed with costs.
Court Disposition
reference dismissed with costs
Orders
- The reference is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL AT NYERI Civil Appli 301 of 2007 (UR 15/2007) NJIRU KIRIRAGIA …………………………….………..APPLICANT
AND
SILVESTER NJIRU NJERU…………………….....RESPONDENT
(Application for extension of time to serve and file notice of appeal from the judgment of the High Court of Kenya at Embu (Lenaola, J) dated 11th July, 2005
in
H.C.C.C. NO. 65 OF 2002)
****************
RULING OF THE COURT
This is a reference under Rule 54 of the Rules of the Court from a decisionof the learned single Judge of this Court, (Onyango Otieno, J.A,) delivered on 22nd May, 2008 by which he dismissed the applicant’s application for extension of time within which to prefer an appeal from the judgment of the High Court of Kenya at Embu (Lenaola, J) dated 11th July, 2005.
It is submitted before us by Mr. Muyodi, counsel for the applicant, that the learned single judge failed to consider the fact that the respondent was in actual possession of the suit land, the subject matter of the intended appeal, and that by reason thereof the respondent would not suffer prejudice if the application was granted. Mr. Muyodi further contended that the learned single judge did not adequately consider the reasons which led the applicant not to file his appeal within the prescribed time.
It is manifestly clear from perusal of the record that prejudice and delay were considered by the learned single judge and counsel’s submission otherwise cannot be sustained. Further, it is plain that the question of the applicant’s inability to raise funds for the purposes of lodging an appeal had been adequately considered and rejected by the learned judge in his said ruling. It would follow therefore that the counsel’s submissions are entirely without any basis.
It is trite that a reference is not technically an appeal but it has the nature of one and we are mindful of our duty not to interfere with the exercise of a discretion of the single judge of appeal from whom the reference is brought unless it is clear that the judge had erred or had exercised his discretion on improper grounds and the onus is on the applicant to persuade the court of this.
It is our view that the applicant has not demonstrated how the learned single judge erred or exercised his discretion improperly. In the circumstances there cannot be any legal basis upon which this Court can interfere with the learned Judge’s exercise of discretion. Consequently, this reference fails and is accordingly dismissed with costs.
DATED AND DELIVERED at NYERI this 22ND day of May, 2009.
P.K. TUNOI
………………………………..
JUDGE OF APPEAL
P.N. WAKI
………………………………
JUDGE OF APPEAL
J. G. NYAMU
……………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR