[2021] KECA 470 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the delay in filing the notice and record of appeal. The affidavits submitted did not demonstrate diligence or expedition, and there was no proof of the alleged enquiry at the registry. The unexplained period between discovery of the...
Source-derived case information.
- Citation
- [2021] KECA 470 (KLR)
- Parties
- Applicant: Summit Clove Lines Company Limited; Respondent: UAP Insurance Company Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Application 1 of 2020
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application dismissed
- Judges
- MA Warsame
- Legal Topics
- Extension of Time, Appeals Process, Court of Appeal Rules
- 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
Summit Clove Lines Company Limited
Applicant
UAP Insurance Company Limited
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the notice and record of appeal out of time.
- 2 Whether the length of delay and explanation offered justify the exercise of the court's discretion to extend time.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the delay in filing the notice and record of appeal. The affidavits submitted did not demonstrate diligence or expedition, and there was no proof of the alleged enquiry at the registry. The unexplained period between discovery of the ruling and filing of the application was fatal to the applicant's case. Consequently, the court declined to exercise its discretion to extend time, emphasizing that without a reasonable explanation for delay, the application could not succeed.
Court Disposition
application dismissed
Orders
- The application for extension of time is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: WARSAME J.A. IN CHAMBERS)
CIVIL APPLICATION NO. 1 OF 2020
BETWEEN
SUMMIT CLOVE LINES COMPANY LIMITED.................APPLICANT
AND
UAP INSURANCE COMPANY LIMITED.........................RESPONDENT
(An application for extension of time to file a notice of appeal and record of appeal against the ruling of the High Court at Mombasa (Justice Chepkwony) dated 3rdMarch, 2020
in
HCCC NO. 43 OF 2017)
*************************
RULING
In a Notice of Motion dated 21st December 2020 the applicant, Summit Clove Lined Company Limited has invoked the Court’s jurisdiction under Rule 4 of the Court of Appeal Rules, 2010 seeking extension of time to file a Notice of Appeal, and Record of Appeal against the ruling and order of the High Court at Nairobi (Justice Chepkwony) delivered on 10th March, 2020.
The applicant contends that the court intimated that the impugned ruling would be delivered on 18th March 2020 yet the ruling was delivered on 10th March 2020 behind their back without notice to both parties. Consequently, they were unable to file the Notice of Appeal on time.
Fundamentally, the applicant who is aggrieved by the Court’s ruling wishes to appeal to this court out of time since the time for filing both the Notice of Appeal and Record of Appeal have both lapsed.
The application before me was filed on 11th December 2020, which is a period of nine months since the ruling was delivered. The applicant in its further replying affidavit dated 10th May 2021 states that it became aware of the ruling in early October 2020 when it was making a routine enquiry at the registry. There is no proof of the said enquiry and no explanation has been offered for the period of delay between the discovery that the ruling was delivered and the filing of the current application, which is a period of two months.
The principles that govern the exercise of discretion in an application for extension of time such as this are well known. They include but are not limited to the length of the delay, the reason for the delay; (possibly) the chances of the appeal succeeding if the application is granted; and, the degree of prejudice to the respondent if the application is granted (See the case of Leo SilaMutiso V. Rose Hellen Wangari Mwangi (1999) 2 EA 231).
I have examined the affidavits in support of the application, and it is my view that they betray a lack of expedition by the applicant. It is incumbent upon the applicant to explain any delay in abiding by the rules of this court. Without explanation, there would be no basis for the exercise of any discretion.
The application is dismissed with no orders as to costs.
DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JULY, 2021.
M. WARSAME
………………………
JUDGE OF APPEAL
I certify that this is a
true copy of the original
Signed
DEPUTY REGISTRAR