[1999] KECA 11 (KLR)
The court dismissed the application for extension of time because the applicant failed to provide any explanation or material for the delay in filing the notice and record of appeal. The judge emphasized that judicial discretion to extend time must be exercised on the basis of sufficient cause being shown. In the...
Source-derived case information.
- Citation
- [1999] KECA 11 (KLR)
- Parties
- Applicant: Philip Gachere; Respondent: Maina Muchiri
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 4 of 1998
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Process, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Gachere
Applicant
Maina Muchiri
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the notice and record of appeal.
- 2 Whether the court should exercise its discretion to extend time in the absence of an explanation for the delay.
Ratio Decidendi
The court dismissed the application for extension of time because the applicant failed to provide any explanation or material for the delay in filing the notice and record of appeal. The judge emphasized that judicial discretion to extend time must be exercised on the basis of sufficient cause being shown. In the absence of any explanation or justification for the delay, there was no basis for the court to grant the indulgence sought. The court was not persuaded that this was a fit or proper case for the exercise of its discretion, and therefore 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
18 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI Civil Appli 4 of1998
PHILIP GACHERE ............................................................................................................. APPLICANT
AND
MAINA MUCHIRI .......................................................................................................... RESPONDENT
(Application for extension of time to file Notice of Appeal and Record of Appeal from the
Judgment of (Hon. Justice Khamoni) dated 14th October, 1996
in
H.C.C.C. NO. 99 OF 1996)
******************
R U L I N G
This is an application for an extension of time to file the notice of appeal and the record of appeal under rule 4 of the Rules of this Court. The applicant had filed an appeal being Civil Appeal No. 103 of 1997 which was struck out on 13th November, 1997 as having been filed out of time without leave. It is true that the Court has a wide and unfettered discretion to extend time but such discretion, as in all cases must be exercised judicially. Here, I have not been informed why the appeal had not been filed in time. No explanation has been given why an extension was not sought before the appeal was filed without leave or a valid extension. Even today there has been no satisfactory or any explanation. I have no material before me why I should grant any indulgence or exercise my discretion in favour of the applicant. When there is no explanation or material, there can be no indulgence.
Upon a careful consideration of all the circumstances of this case, I am not persuaded nor satisfied that this is a fit or proper case for the exercise of my discretion. Accordingly, I dismiss the application with costs
Dated and delivered at Nairobi this 22nd day of April, 1999.
A.A. LAKHA
................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR