[2019] KECA 554 (KLR)
The court found that the explanation for the delay—lack of instructions due to the applicant's relocation—was inadequate, as the applicant was represented by counsel who had a duty to inform him of court processes. Even after the applicant gave instructions in December 2017, there was an additional unexplained delay...
Source-derived case information.
- Citation
- [2019] KECA 554 (KLR)
- Parties
- Applicant: Paul Njoroge Kamau; Respondent: Multiple Hauliers E.A Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 150 of 2018
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Appeal Procedure, Judicial Discretion, Delay in Filing, Sufficient Cause, Employment Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Njoroge Kamau
Applicant
Multiple Hauliers E.A Limited
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the notice of appeal out of time.
- 2 Whether the court should exercise its discretion to extend time for filing the intended appeal.
Ratio Decidendi
The court found that the explanation for the delay—lack of instructions due to the applicant's relocation—was inadequate, as the applicant was represented by counsel who had a duty to inform him of court processes. Even after the applicant gave instructions in December 2017, there was an additional unexplained delay of five months before the application was filed. The court also noted that the award of Kshs. 60,000 was reasonable in the circumstances, and the applicant failed to meet the criteria for extension of time. Consequently, the application for extension of time was dismissed.
Court Disposition
application dismissed
Orders
- The application for extension of time to file the notice of appeal is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: W. OUKO, (P) IN CHAMBERS)
CIVIL APPLICATION NO. 150 OF 2018
BETWEEN
PAUL NJOROGE KAMAU…………..……………………... APPLICANT
AND
MULTIPLE HAULIERS E.A LIMITED……………........RESPONDENT
(Being an application for extension of time to file the intended appeal out of time from the Judgment of the High Court at Nairobi (M. Mbaru, J.) dated 29thJune, 2017
in
Cause No. 1138 of 2013)
***************
RULING
This application by motion on notice dated 17th April 2018 is premised on Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4 and 42 of this Court’s Rules, for an order that the time for filing a notice of appeal against the judgment of the High Court made on 29th June 2017 (Mbaru, J) be extended.
The only explanation proffered for not lodging appeal within the time allowed by the rules is that counsel representing the applicant did not have instructions from the applicant after the latter relocated to the village after his services were terminated by the respondent.
Consequently, by the time instructions were obtained the time for filing the notice of appeal had lapsed; and that it was not until six months later that the applicant visited the advocate’s chambers.
The respondent for its part has insisted that, since extension of time is a discretionary power, it was incumbent on the applicant to satisfy the Court that he was prevented by sufficient reasons from filing the appeal in time. The respondent has also argued that the appeal has no chances of success since Kshs. 60,000 awarded to the applicant was reasonable.
I am guided by the following oft-quoted passage from the case of Leo Sila Mutiso V. Rose Hellen Wangari Mwangi Civil Appeal No. 255 of 1997, on the exercise of discretionary powers when considering an application for enlargement of time:
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that, in general, the matters which this Court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly the reason for the delay; thirdly possibly the chances of the appeal succeeding if the application is granted; and fourthly the degree of prejudice to the respondent if the application is granted.”
To begin with the decision sought to be impugned was made on 29th June 2017. This application was brought on 17th May 2018, approximately 11 Months. The explanation that counsel had no instructions from the applicant is absurd since he was represented by an advocates who owed him a duty to inform him of the court processes and procedures.
Even after visiting his advocates’ chambers in December 2017 after the delivery of the judgment and giving instructions, the applicant still took five more months to present this application.
On the chances of success, and without expressing any conclusive position, I think an award of Kshs.60,000/= in the circumstances was adequate.
Accordingly the applicant has not satisfied the criteria for the grant of leave to extend time. The application is dismissed with no orders as to costs.
Dated and delivered at Nairobi this 5thday of July 2019.
W. OUKO, (P)
.....................................
JUDGE OF APPEAL
I certify that this is a
True copy of the original
DEPUTY REGISTRAR