[2000] KECA 364 (KLR)
The application for extension of time was dismissed because the applicant failed to provide any material evidence, such as an affidavit from the advocate, to substantiate the alleged mistake that caused the delay. Furthermore, the delay of approximately 20 months in filing the application was deemed inordinate and...
Source-derived case information.
- Citation
- [2000] KECA 364 (KLR)
- Parties
- Applicant: Peter Maina Munyua; Respondent: Damaris Njoroge
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 210 of 1999
- Procedural Posture
- Civil Application / Application for Extension of Time to File and Serve Notice and Record of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Process, Procedural Default
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Maina Munyua
Applicant
Damaris Njoroge
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File and Serve Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing and serving the notice and record of appeal.
- 2 Whether the court should exercise its discretion to grant an extension of time under rule 4 of the Court of Appeal Rules.
Ratio Decidendi
The application for extension of time was dismissed because the applicant failed to provide any material evidence, such as an affidavit from the advocate, to substantiate the alleged mistake that caused the delay. Furthermore, the delay of approximately 20 months in filing the application was deemed inordinate and wholly unexplained. The court held that in the absence of a satisfactory explanation for the delay, it could not exercise its discretion to grant the extension sought. The principle that discretion must be exercised judicially and only upon sufficient cause being shown was determinative. As a result, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time is dismissed with costs.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: LAKHA, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 210 OF 1999BETWEEN PETER MAINA MUNYUA ..................................APPLICANT AND DAMARIS NJOROGE .....................................RESPONDENT
(Application for extension of time to file and serve Notice and Record of Appeal from a Judgment and Decree of the High Court of Kenya at Nairobi (Justice Amin) dated 21st October, 1997
inH.C.C.C. NO. 281 OF 1996) **************R U L I N G
This is an application under rule 4 of the Rules of this Court for an extension of time to file and serve the record of appeal for the purpose of filing an appeal against the judgment of the superior court in appeal given on 21 October, 1997.
It is alleged that there was a mistake on the part of the advocate concerned but his affidavit is not produced to allege or confirm such a mistake. There is, therefore, no material before me to consider the exercise of my discretion. In addition, a similar application for extension was withdrawn when it came before Gicheru, J.A.. This application was not filed until about 20 months later on 6th August, 1999.
Clearly, there is an inordinate delay which has not been explained at all.
For these reasons the application fails. When there is no explanation there can be no indulgence.
Application dismissed with costs.
Dated and delivered at Nairobi this 20th day of January, 2000. A.A. LAKHA...............JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR