[2005] KECA 127 (KLR)
The court found that the sixteen-day delay in bringing the application for extension of time was not inordinate, given the explanation that the applicant's new advocates needed time to take instructions after the previous appeal was withdrawn. The court accepted the explanation as sufficient and reasonable in the...
Source-derived case information.
- Citation
- [2005] KECA 127 (KLR)
- Parties
- Applicant: Paul Nyoro Ng'ang'a; Respondent: Margaret W. Ng'ang'a
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Application 64 of 2005
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- Application allowed. Extension of time granted.
- Legal Topics
- Extension of Time, Appeals Process, Delay Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Nyoro Ng'ang'a
Applicant
Margaret W. Ng'ang'a
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the delay of sixteen days in filing the present application for extension of time was inordinate and unexplained.
- 2 Whether the applicant's advocates provided a sufficient explanation for the delay after withdrawal of the previous appeal.
Ratio Decidendi
The court found that the sixteen-day delay in bringing the application for extension of time was not inordinate, given the explanation that the applicant's new advocates needed time to take instructions after the previous appeal was withdrawn. The court accepted the explanation as sufficient and reasonable in the circumstances. The respondent's objection that the explanation constituted inadmissible evidence from the bar was rejected. The court exercised its discretion to allow the application, extended the time for filing the notice of appeal, and set timelines for filing and serving the record of appeal. Costs of the motion were awarded to the respondent, assessed at KES 5,000, payable...
Court Disposition
Application allowed. Extension of time granted.
Orders
- Time for filing the notice of appeal is extended up to 2nd March, 2005.
- The record of appeal is to be filed within seven days of the date hereof and must be served upon the respondent within another seven days from the date it is lodged in Court.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
CORAM: OMOLO, J.A. (IN CHAMBERS)
CIVIL APPLICATION NAI 64 OF 2005
BETWEEN
PAUL NYORO NG’ANG’A……………………….……..….……...APPLICANT
AND
MARGARET W. NG’ANG’A…………………….………………RESPONDENT
(An application for extension of time within which to lodge a notice of appeal and the record of appeal from the ruling of the High Court of Kenya at Eldoret (Nambuye, J) dated 6th August, 2001
in
H.C.SUCC.C. NO. 6 OF 1983)
************************************
R U L I N G
The applicant’s previous appeal was withdrawn on 17th February, 2005on the ground that it was incurably defective. The applicant then took another sixteen days before returning to the Court with the present motion. Mr. Cheruiyot says on behalf of the respondent that the delay of sixteen days is unexplained and is inordinate. Mr. Kahigatells me that the sixteen days was required to take instructions from the applicant as they were not the advocates who had filed the appeal which was withdrawn. Mr. Cheruiyotthinks that is giving evidence from the bar and that such evidence is inadmissible. I very much doubt the correctness of that contention. It is to be remembered that in these matters the Court is normally asked to grant leave on stated grounds and on any other grounds as may be adduced at the hearing of the motion. I have never heard anyone contend that such a prayer is illegal.
The sixteen days do not really constitute what can be called inordinate delay. Some explanation has been offered for that period, namely that the advocates for the applicant were taking instructions, as they were not the ones who had filed the previous appeal. I accept the explanation and hold that the delay of sixteen days is not inordinate in the circumstances of the present motion.
Accordingly, I allow the notice of motion dated3rd March, 2005 and make the following orders:-
(1) The time for filing the notice of appeal is extended upto the 2nd March, 2005 when the notice was in fact filed;
(2) The record of appeal is to be filed within seven days of the date hereof and must be served upon the respondent within another seven days from the date it is lodged in Court;
(3) I award to the respondent the costs of this motion which I assess at Shs.5,000/= and which must be paid within twenty one (21) days of the date hereof. If payment is not made within that period, the respondent shall be at liberty to execute.
Those are my orders in the motion.
DATED and DELIVERED at ELDORET this 20th day of September, 2005.
R.S.C. OMOLO
…………………
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR