[2000] KECA 262 (KLR)
The applicant failed to serve a copy of the letter requesting certified copies of proceedings and judgment on the respondents as required by rule 81(2) of the Court of Appeal Rules. As a result, the applicant could not benefit from the proviso to rule 81(1), which would have excluded the time taken to obtain those...
Source-derived case information.
- Citation
- [2000] KECA 262 (KLR)
- Parties
- Applicant: Samuel Kibe; Respondent: Benson Murigi Njuguna; Respondent: John Kamunyu Murigi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 96 of 1999
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Extension of Time, Appeals Process, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kibe
Applicant
Benson Murigi Njuguna
Respondent
John Kamunyu Murigi
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the applicant is entitled to an extension of time to file and serve the record of appeal.
- 2 Whether failure to serve a copy of the letter requesting proceedings on the respondents disentitles the applicant to the benefit of rule 81(1) proviso.
Ratio Decidendi
The applicant failed to serve a copy of the letter requesting certified copies of proceedings and judgment on the respondents as required by rule 81(2) of the Court of Appeal Rules. As a result, the applicant could not benefit from the proviso to rule 81(1), which would have excluded the time taken to obtain those documents from the computation of the period for filing the record of appeal. The delay of 325 days beyond the prescribed 60-day period for lodging the record of appeal was not explained satisfactorily. The court found that such a delay was substantial and unjustified, and therefore declined to exercise its discretion under rule 4 to extend the time sought by the applicant.
Court Disposition
application dismissed with costs to the respondents
Orders
- The applicant's application for extension of time is dismissed.
- The applicant shall pay the costs of the application to the respondents.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (Coram: Gicheru, J.A. (IN CHAMBERS) CIVIL APPLICATION. NAI. 96 OF 1999 BETWEEN
SAMUEL KIBE..............................................APPLICANT AND 1. BENSON MURIGI NJUGUNA............................1ST RESPONDENT 2. JOHN KAMUNYU MURIGI..............................2ND RESPONDENT
(An 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 (Mbogholi -Msagha, J.) dated 26/3/98 in H.C.C.A. NO. 22 OF 1996) ************************ RULING:
In this application, the applicant seeks extension of time within which to lodge and serve the record of appeal. The decree intended to be appealed from was given by the superior court on 26th March, 1998 and on 4th April, 1998 the applicant who was then acting in person applied for certified copies of the proceedings and judgment of the superior court.
That application was in writing and was made within the prescribed period. A copy of the same was, however, not sent to the respondents. Hence, in terms of rule 81(2) of the Court of Appeal Rules, hereinafter called the Rules, the proviso to sub-rule (1) of the aforesaid rule was not available to the applicant. From the date of lodging the Notice of Appeal on 6th April, 1998 to 26th April, 1999 when the present application was made, a period of 385 days had elapsed.
From the supporting affidavits to the applicant's application, it would seem that the reason for the delay in lodging the record of appeal was the late receipt of the certified copies of the proceedings, judgment and decree from the superior court. That explanation is of no consequence as sub-rule (2) of rule 81 of the Rules was not complied with. From the date of lodging the Notice of Appeal - 6th April, 1998 - the applicant had 60 days within which to lodge the record of appeal in this Court. Beyond that period, the subsequent delay of 325 days in lodging the said record remains unexplained. That is no mean delay. Consequently, I am unable to exercise my discretion under rule 4 of the Rules in favour of the applicant. I therefore dismiss the applicant's application with costs to the respondents.
Dated and delivered at Nairobi this 3rd day of March, 2000.
J.E. GICHERU ...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR