[2002] KECA 246 (KLR)
The court found that the applicant failed to provide a satisfactory or credible explanation for the seven-month delay in filing the notice and record of appeal. The present advocate could not positively swear as to the reasons for the delay, and the affidavit in support did not adequately account for the period of...
Source-derived case information.
- Citation
- [2002] KECA 246 (KLR)
- Parties
- Applicant: Richard Ng'ang'a Chege; Respondent: Naomi Lina Were
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 247 of 2001
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed with costs
- Judges
- D Ole Keiwua
- Legal Topics
- Extension of Time, Appeals Process, Inordinate Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Ng'ang'a Chege
Applicant
Naomi Lina Were
Respondent
Procedural Posture
Civil Application / 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 delay of seven months in filing the application is inordinate and justifies the exercise of the court's discretion to extend time.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory or credible explanation for the seven-month delay in filing the notice and record of appeal. The present advocate could not positively swear as to the reasons for the delay, and the affidavit in support did not adequately account for the period of inaction. The respondent demonstrated that the applicant's previous advocate was aware of the judgment months before the application was made. Given the inordinate and unexplained delay, the court declined to exercise its discretion to extend time under rule 4 of the Court of Appeal Rules and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file and serve notice and record of appeal out of time is dismissed with costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: KEIWUA, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 247 OF 2001 (KSM. 39/2001)
BETWEEN
RICHARD NG'ANG'A CHEGE .............................APPLICANT
AND
NAOMI LINA WERE ......................................RESPONDENT
(Application for extension of time to file and serve Notice of
Appeal and Record of Appeal out of time from the Judgment
and Decree of the High Court of Kenya at Kakamega (Mr.
Justice B.K. Tanui) dated 17th November, 2000
in
H.C.C.C. NO. 108 OF 1997)
****************
R U L I N G
This is an application under rule 4 of the Court's Rules for extension of time within which to file both the notice and record of appeal.
The affidavit in support of the application is by the present advocate who seems to blame the applicant's previous advocate for the delay in filing both these documents in Court. The affidavit attempts without success to say there has been no inordinate delay in bringing the application.
The judgment sought to be appealed from was delivered on November 7, 2000 and the insurers of the applicant were not informed until May 7, 2001 . The respondent in opposing the application indicated that the previous advocate was on February 2, 2001 made aware of the existence of the said judgment when that advocate was served with notice of taxation which can only be after judgment has been entered.
It seems to me that Mr. Kasamani, present Counsel for the applicant, is not in a position to positively swear as to what caused the delay in filing the application or the reason for the delayed notice of appeal.
By any standard a delay of seven months is inordinate and it has been made worse by the absence of any explanation. I, therefore, decline to exercise my discretion and I dismiss the application with costs.
Dated and delivered at Kisumu this 14th day of March, 2002.
M. Ole KEIWUA
.......................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR