[1999] KECA 20 (KLR)
The court found that although the delay between the striking out of the previous appeal and the filing of the present application was lengthy, the applicant had satisfactorily explained the delay by showing that he was unaware of the striking out until he checked at the registry. Upon learning of the event, he acted...
Source-derived case information.
- Citation
- [1999] KECA 20 (KLR)
- Parties
- Applicant: Samwel Ndura Kanyara; Respondent: Mary Njambi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 88 of 1997
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- Application allowed.
- Legal Topics
- Extension of Time, Appeal Struck Out, Delay Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Samwel Ndura Kanyara
Applicant
Mary Njambi
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 a satisfactory explanation for the delay in filing the notice and record of appeal.
- 2 Whether the delay from 23rd September, 1996 to 20th March, 1997 is inordinate and if it should be excused.
Ratio Decidendi
The court found that although the delay between the striking out of the previous appeal and the filing of the present application was lengthy, the applicant had satisfactorily explained the delay by showing that he was unaware of the striking out until he checked at the registry. Upon learning of the event, he acted promptly. The absence of these facts in the affidavits was not, in the court's view, a sufficient reason to reject the explanation, particularly since the applicant was not present when the appeal was struck out. The court therefore exercised its discretion to allow the application for extension of time.
Court Disposition
Application allowed.
Orders
- The applicant shall file and serve his notice of appeal within seven days of the date hereof.
- The applicant must file his record of appeal within twenty-one days from the date of filing the notice of appeal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU (CORAM: OMOLO, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 88 OF 1997 BETWEEN
SAMWEL NDURA KANYARA ...................................APPLICANT
AND
MARY NJAMBI ............................................RESPONDENT
(Application for extension of time to file Notice of Record of Appeal from an Order of the High Court of Kenya at Eldoret (Justice Aganyanya) dated 3rd February, 1994
in
H.C.C.C. NO. 152 OF 1995)
****************
R U L I N G
It is agreed that a previous appeal, No. 152 of 1995, was struck out on the 23rd September, 1996. It is equally agreed that when the appeal was struck out the applicant was in fact absent. The applicant says he only came to know about the striking out on the 20th March, 1997 when he came to the court's registry to check on the matter. He filed his present motion thereafter, apparently on the same day. My Njuguna for the respondent asks me to reject these assertions on the basis that they are not contained in the notice of motion or in any of the supporting affidavits but I do not think that alone is good reason for rejecting them particularly in view of the fact that the applicant was absent when his appeal was struck out. 23rd September, 1996 to 20th March, 1997 would appear on its face, to be an inordinate delay for filing a simple application such as this one but I think the applicant has satisfactorily explained the delay. He was unaware that his appeal had been struck out and when he became aware of that fact he promptly filed this motion.
I accept his explanation for the delay and that being the view which I take of the matter, I allow the applicant's motion dated 20th March, 1997 and make the following orders:-
(1) the applicant shall file and serve his notice of appeal within seven days of the date hereof.
(2) the applicant must then file his record of appeal within 21 (twenty one) days from the date of filing the notice of appe al.
(3) the costs of this application shall be in the intended appeal.
Those shall be my orders in the motion.
Dated and delivered at Nakuru this 24th day of September, 1999
R. S.C .O MOLO
-----------------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR