[1997] KECA 224 (KLR)
The court found that the applicant was personally responsible for multiple lapses and omissions in prosecuting the intended appeal, including filing a similar application in the wrong court, delayed instructions to his advocate, and late dispatch of the letter requesting proceedings. The court emphasized that a...
Source-derived case information.
- Citation
- [1997] KECA 224 (KLR)
- Parties
- Applicant: Peter Kimani Ngubu; Respondent: Salome Gathoni Chege
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 8 of 1997
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Notice of Appeal, Record of Appeal, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kimani Ngubu
Applicant
Salome Gathoni Chege
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reasons to warrant extension of time to file a Notice of Appeal and Record of Appeal out of time.
- 2 Whether the lapses and omissions by the applicant justify the exercise of the court's discretion in his favour.
Ratio Decidendi
The court found that the applicant was personally responsible for multiple lapses and omissions in prosecuting the intended appeal, including filing a similar application in the wrong court, delayed instructions to his advocate, and late dispatch of the letter requesting proceedings. The court emphasized that a Notice of Appeal does not require the prior receipt of proceedings or judgment. After considering all facts and submissions, the court was not persuaded that the applicant had provided sufficient or convincing reasons to justify the exercise of discretion in his favour. Consequently, the application for extension of time was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file Notice of Appeal and Record of Appeal out of time is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: TUNOI, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 8 OF 1997
BETWEEN
PETER KIMANI NGUBU ................................. APPLICANT
AND
SALOME GATHONI CHEGE ............................... RESPONDENT
(Application for extension of time to file Notice of Appeal and Record of Appeal out of time in an intended appeal from a judgment of the High Court of Kenya at Nairobi (Mr. Justice Kuloba) dated 20th February, 1996 in H.C.C.C. NO. 2071 OF 1977) *********************
RULING
By a Notice of Motion under rule 4 of the Rules of this Court the applicant has moved the court for an order extending and enlarging time within which to file a Notice of Appeal and, thereafter, to lodge a record of appeal in an intended appeal against the judgment of the superior court at Nairobi (Kuloba, J.) in its Civil Case No. 2071 of 1977 delivered on February 2, 1996. The applicant has been guilty of many lapses and omissions in the prosecution of his intended appeal. Firstly, a similar application, as this one, was lodged in a wrong court and despite it being disposed of on November 25, 1996, nothing was done to rectify the omission until almost two months afterwards. Secondly, though the proceedings were received on April 16, 1996, the applicant has not given any convincing reasons why he did not instruct his advocate to lodge the intended appeal until about three months later.
This is not a mistake of the advocate but that of the applicant himself. Thirdly, despite the letter to the Deputy Registrar applying for proceedings and judgment having been written on February 20, 1996, it was not despatched to court until March 6, 1996. Finally, a litigant does not require proceedings and judgment in order to lodge a Notice of Appeal, a simple document, normally lodged by intending appellants as a matter of course. Taking into account all the facts, rival submissions by the counsel for the parties and circumstances of the matter, I am not persuaded that this is a proper case for me to exercise my discretion in favour of the applicant. I do not think that he is deserving of the relief sought by him. The application fails and I accordingly dismiss it with costs.
Dated and delivered at Nairobi this 28th April, 1997.
P. K. TUNOI
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR