[2003] KECA 141 (KLR)
The application for extension of time was dismissed because the applicant failed to provide a satisfactory explanation for the delay between discovering the error in the notice of appeal and filing the application for extension. The court found the delay inordinate and unjustified. Additionally, the court held that...
Source-derived case information.
- Citation
- [2003] KECA 141 (KLR)
- Parties
- Applicant: Paul Ng'ang'a Kamuyu; Respondent: Peter Kinuthia Kamuyu; Respondent: Hellen W. Kamuyu; Respondent: Elizabeth W. Kamuyu; Respondent: Joseph N. Kamuyu; Respondent: Stephen W. Kamuyu; Respondent: Lucy M. Kamuyu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 286 of 2002
- Procedural Posture
- Civil Application / Application for Leave to File Appeal Out of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Out of Time, Succession Proceedings, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Ng'ang'a Kamuyu
Applicant
Peter Kinuthia Kamuyu
Respondent
Hellen W. Kamuyu
Respondent
Elizabeth W. Kamuyu
Respondent
Joseph N. Kamuyu
Respondent
Stephen W. Kamuyu
Respondent
Lucy M. Kamuyu
Respondent
Procedural Posture
Civil Application / Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the application for extension of time.
- 2 Whether the Court of Appeal has jurisdiction to grant extension of time where no appeal lies as of right from the order of the High Court in succession matters without leave.
- 3 Whether the intended appeal is competent in the absence of leave from the High Court.
Ratio Decidendi
The application for extension of time was dismissed because the applicant failed to provide a satisfactory explanation for the delay between discovering the error in the notice of appeal and filing the application for extension. The court found the delay inordinate and unjustified. Additionally, the court held that no appeal lies as of right from the order of the High Court in succession matters without leave, which was not sought or obtained by the applicant. Therefore, even if the delay were excused, the intended appeal would be incompetent, and granting an extension would serve no purpose.
Court Disposition
application dismissed with costs
Orders
- The application for leave to file appeal out of time is dismissed.
- The applicant shall pay the costs of this application.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE COURT OF APPEAL AT NAIROBI
(CORAM: LAKHA, J.A. (IN CHAMBERS))
CIVIL APPLICATION NO. NAI. 286 OF 2002
BETWEEN
PAUL NG'ANG'A KAMUYU ...............................................APPLICANT
AND
PETER KINUTHIA KAMUYU ............................... 1ST RESPONDENT
HELLEN W. KAMUYU ......................................... 2ND RESPONDENT
ELIZABETH W. KAMUYU ................................... 3RD RESPONDENT
JOSEPH N. KAMUYU ........................................ 4TH RESPONDENT
STEPHEN W. KAMUYU ..................................... 5TH RESPONDENT
LUCY M. KAMUYU ............................................. 6TH RESPONDENT
(Application for leave to file appeal out of time from the Ruling of the High Court of Kenya at Nairobi delivered on 13th February, 2000 (Hon. Justice Githinji)
in SUCCESSION CAUSE NO. 552 OF 1993) *****************
R U L I N G
This is an application by the unsuccessful petitioner seeking an order that he be granted leave to file out of time a fresh notice of appeal and a record of appeal against the ruling of the superior court given on 13 February, 2000 . The litigation commenced by the superior court under the provisions of Succession Act, Cap 150 of the Laws of Kenya . A notice of appeal was filed within time but it was wrongly dated. The applicant's advocate discovered this on or about 2 September 2002. This application was not filed until 8 October, 2002.
The delay from 2 Septemberto8 October of more than about a month has not been explained satisfactorily or at all. This, in my view, was an inordinate delay in filing such a single application for extension. There is no account or an explanation of the delay entailed. In these circumstances, I am disinclined to exercise my discretion in favour of the applicant having regard to the lack of urgency which has been shown on his part in bringing this application before the Court.
This sufficiently disposes of the application. If, however, it is found that I am wrong, then I am of the view that in the instant case no appeal lies to this Court from the decision of the superior court intended to be appealed against. If that is so, then there will be no question of granting any extension as to do so would be to act in vain which this Court does not. It is not in dispute that the proceedings originated in the superior court whose decision gave rise to an order. For the reasons given by this Court in MARGARET MAKHANGU JOHN VS. DAVID JOHN KIBWANA (EXECUTOR) Civil Appeal No. 84 of 1995, no appeal lies from such an order of the superior court as of right but only with leave. Such leave not having been sought or obtained would render the intended appeal incompetent in which case is not necessary to consider the present application for extension. I may add that the time for obtaining such leave expired on 27 February 2000 i.e. within 14 days of the date of the decision of the superior court.
Accordingly and, for the reasons above stated, I dismiss this application with costs.
Dated and delivered at Nairobi this 3rd day of February, 2003
A.A. LAKHA
................................
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR