[1999] KECA 154 (KLR)
The court found that the applicant delayed for 22 months before making the application for extension of time to file and serve the record of appeal. The explanation provided, namely late receipt of proceedings and delay in giving instructions, was not considered sufficient or plausible to justify such a lengthy...
Source-derived case information.
- Citation
- [1999] KECA 154 (KLR)
- Parties
- Applicant: Reuben Njuguna Nyumu; Respondent: Nelly Wagio Njuguna
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 18 of 1999
- Procedural Posture
- Civil Application / Application for Extension of Time to File and Serve Record of Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- JE Gicheru
- Legal Topics
- Extension of Time, Appeals Process, Court Discretion, Delay in Filing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Reuben Njuguna Nyumu
Applicant
Nelly Wagio Njuguna
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File and Serve Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for the inordinate delay of 22 months in seeking extension of time to file and serve the record of appeal.
- 2 Whether the court should exercise its discretion under rule 4 of the Court of Appeal Rules in favour of the applicant.
Ratio Decidendi
The court found that the applicant delayed for 22 months before making the application for extension of time to file and serve the record of appeal. The explanation provided, namely late receipt of proceedings and delay in giving instructions, was not considered sufficient or plausible to justify such a lengthy delay. The court held that the applicant was indolent and, in the absence of a satisfactory explanation, was not entitled to the exercise of the court's discretion under rule 4 of the Court of Appeal Rules. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for extension of time is dismissed with costs to the respondent.
- Applicant may apply for reference to the full court if he so desires.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (Coram: Gicheru, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 18 OF 1999 BETWEEN
REUBEN NJUGUNA NYUMU...................................APPLICANT AND NELLY WAGIO NJUGUNA....................................RESPONDENT
(Appeal from a Ruling of the High Court of Kenya at Nairobi (Githinji, J.) dated 17/3/97 in H.C.C.C. NO. 513 OF 1992
RULING:
In this Notice of Motion the applicant has sought extension of time within which to lodge and serve the record of appeal.
From the submission of counsel for the applicant, the cause of delay in lodging the record of appeal was the nonreceipt of the proceedings from the superior court until 3rd april, 1998 besides the applicant's delay in giving appropriate instructions to counsel.
It would appear from the record of this application that the ruling intended to be appealed from was given on 17th March, 1997. A copy of the said ruling was checked and certified as true of the original ruling on 20th November, 1997. Although it would appear from the supporting affidavit to the applicant's application that an earlier application for extension of time was made on 7th July, 1998 and subsequently withdrawn, the present application was not made until 25th January, 1999 - a period of 22 months from the date of the ruling intended to be appealed from. Notwithstanding counsel's contention that the applicant's intended appeal is meritorious, the delay of 22 months in making this application is certainly inordinate. In the absence of plausible explanation for this delay, I agree with counsel for the respondent that the applicant was clearly indolent in making this application to this Court and on account of this he is not entitled to the exercise of discretion in his favour under rule 4of the Court of Appeal Rules. In the result, this application is dismissed with costs to the respondent. Dated and delivered at Nairobi this 19th day of November, 1999.
J.E. GICHERU
...............
JUDGE OF APPEAL
Order:
Applicant to apply for reference to the full court if he so desires.
J.E. GICHERU
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR