[2020] KECA 287 (KLR)
The court found that while it has discretion to extend time under Rule 4 of the Court of Appeal Rules, the applicant must provide sufficient justification for the exercise of that discretion. In this case, the applicant failed to provide any documentary evidence to support his claim of illness as the reason for the...
Source-derived case information.
- Citation
- [2020] KECA 287 (KLR)
- Parties
- Applicant: Santaben Ramniklala Parma & 2 Others; Respondent: Warpa Limited & Another; Applicant: Isaac Gichanga Wangari
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 50 of 2020
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Extension of Time, Notice of Appeal, Court of Appeal Rules, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Santaben Ramniklala Parma & 2 Others
Applicant
Warpa Limited & Another
Respondent
Isaac Gichanga Wangari
Applicant
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient justification for the extension of time to file a notice of appeal out of time.
- 2 Whether the delay in filing the notice of appeal and the application for extension of time is explained and excusable.
Ratio Decidendi
The court found that while it has discretion to extend time under Rule 4 of the Court of Appeal Rules, the applicant must provide sufficient justification for the exercise of that discretion. In this case, the applicant failed to provide any documentary evidence to support his claim of illness as the reason for the delay in filing the notice of appeal. Furthermore, the applicant did not offer any explanation for the additional delay in filing the application for extension of time. The court held that the delay was both unexplained and inordinate, and therefore, there was no merit in the application. The motion for extension of time was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file notice of appeal is dismissed.
- The applicant shall bear the costs of the application.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPLICATION NO. 50 OF 2020
(CORAM: OKWENGU, JA (IN CHAMBERS)
SANTABEN RAMNIKLALA PARMA & 2 OTHERS.....................APPLICANTS
AND
WARPA LIMITED & ANOR.........................................................RESPONDENT
(Being an application for extension o time to file notice of appeal against the judgment of the Environment and Land Court at Nairobi (O’kongo, J) delivered on 5thDecember 2019)ELC no. 725 of 2013
***************
RULING
[1] By a notice of motion dated 24th February 2020, the applicant Isaac Gichanga Wangariwho was the 2nd plaintiff in Nairobi Environment and Land Court (ELC), Suit No. 725 of 2003 (OS) seeks orders to have time extended to enable him file a notice of appeal out of time against the judgment of the ELC court (Okong’o J) delivered on 5th September 2019.
[2] The application is supported by an affidavit sworn by the applicant, to which is annexed the judgment, subject of the intended appeal. The applicant has also filed written submissions. The gist of the applicant’s motion is that judgment was delivered on the 5th of December 2019 and that the applicant filed a notice of appeal on 23rd December, 2019 which was outside the 14 days provided under Rule 75(2) of the Court Rules. The applicant explains that he was unwell. However, he has not annexed any documents to support that contention. Secondly, the applicant’s motion seeking extension of time was filed on 24th February 2020. No explanation has been given for the inordinate delay in filing this application.
[3] While it is now settled that a single judge has unfettered discretion under rule 4 of the Court of Appeal Rules, to extend time for the doing of any action provided by the Rules, that discretion has to be exercised judicially. This means that the applicant must satisfy the Court that there is justification for the exercise of that discretion.
[4] In Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No. Nai. 255 of 1997) (unreported), it was held that such justification may be found in the peculiar circumstances of the case including the length and reason for the delay. In this case, the applicant has not provided any good reason for the delay in bringing his motion, nor has he substantiated his allegation that he filed the notice of appeal late as he was unwell. Clearly, the delay is unexplained and inordinate.
[5] In the circumstances, I find no merit in the applicant’s motion.
It is dismissed with costs.
Dated and delivered at Nairobi this 9thday of October, 2020.
HANNAH OKWENGU
…………………………..
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR