[2019] KECA 717 (KLR)
The court found that the applicant failed to provide any sufficient or specific reason for the six-month delay in filing the notice of appeal. The only explanation offered was a vague reference to inadvertence and a breakdown in communication with former advocates, which the court found inadequate. The court...
Source-derived case information.
- Citation
- [2019] KECA 717 (KLR)
- Parties
- Applicant: Wahib Saad Ali; Respondent: Salma Kassim Said
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 43 of 2019
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed with costs
- Judges
- GK Oenga
- Legal Topics
- Extension of Time, Notice of Appeal, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wahib Saad Ali
Applicant
Salma Kassim Said
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the notice of appeal.
- 2 Whether the court should exercise its discretion to extend time for filing the notice of appeal.
Ratio Decidendi
The court found that the applicant failed to provide any sufficient or specific reason for the six-month delay in filing the notice of appeal. The only explanation offered was a vague reference to inadvertence and a breakdown in communication with former advocates, which the court found inadequate. The court emphasized that its discretion to extend time must be exercised on principle and not out of sympathy or whim. Since no credible reason was given for the delay, the court declined to exercise its discretion in favour of the applicant and dismissed the application.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file a notice of appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: KIAGE, JA.(IN CHAMBERS))
CIVIL APPLICATION NO. 43 OF 2019
BETWEEN
WAHIB SAAD ALI .........................................................APPLICANT
AND
SALMA KASSIM SAID ............................................RESPONDENT
(Appeal for leave top appeal out of time against the judgment of the High Court of Kenya at Kisumu (Cherere, J.) dated 18th October, 2018in
ORIGINAL SUCC APPEAL NO. 32 of 2011)
*********************************
RULING
The judgment of the High Court that the applicant seeks extension of time to file a notice of appeal against was delivered on 18th October, 2018.
As at the time this motion was filed, six months later on 26th April, 2019, no notice of appeal had been filed. None has been filed to date. In the supporting affidavit the applicant states at paragraph 5 that;
“the delay to issue instructions for filing of notice of appeal was occasioned by excusable inadvertence and not by desire to scuttle, delay or stifle administration of justice.
The respondent contends that no reason has been given for the delay. I am afraid I have to agree. The applicant does not say what the inadvertence that is sought to be excused was.
I think that 6 months is a woefully long time for a party to let slip by before deciding whether or not he wants to appeal. Much as my discretion is wide and unfettered, I must have some basis on which I can do so on behalf of a pleader. When no reason at all is given-and I say this cognisant that the motion on its face mentions breakdown communication between the applicant and his former advocates, “leading to this failure to timorously (sic) given instructions for lodgement of a notice of appeal in time,” -it would be neither judicial nor judicious to extend time. To do so would be to act out of whim, caprice or sympathy as opposed to principle.
In the result, I am more persuaded by the arguments by learned counsel Mr. Nyanga for the respondent, that litigation must come to an end. I cannot revive this litigation after learned counsel Mr. Achura’s client went to sleep for half a year.
The application is dismissed with costs.
DATED at Kisumu this 21st day of May, 2019
P. O. KIAGE
.....................................
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR.