[1999] KECA 78 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the prolonged delay in filing the record of appeal, as the reasons advanced by the applicant and his advocate were insufficient. Furthermore, the court held that since the time for lodging an appeal had already passed, there was no...
Source-derived case information.
- Citation
- [1999] KECA 78 (KLR)
- Parties
- Applicant: Wambua Mulili; Respondent: District Commissioner Kitui; Respondent: Benjamin Mutunga Mutema
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 3 of 1999
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Record of Appeal
- Outcome
- application dismissed with costs to the second respondent
- 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
Wambua Mulili
Applicant
District Commissioner Kitui
Respondent
Benjamin Mutunga Mutema
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for the delay in filing the record of appeal.
- 2 Whether an extension of time can be granted when there is no valid notice of appeal in existence.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the prolonged delay in filing the record of appeal, as the reasons advanced by the applicant and his advocate were insufficient. Furthermore, the court held that since the time for lodging an appeal had already passed, there was no valid notice of appeal in existence. Without a valid notice of appeal, granting an extension of time to file the record of appeal would be pointless. Therefore, the application was dismissed on both grounds: lack of sufficient cause for delay and absence of a valid notice of appeal.
Court Disposition
application dismissed with costs to the second respondent
Orders
- The application for extension of time to file the record of appeal is dismissed.
- Costs awarded to the second respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 3 OF 1999
BETWEEN
WAMBUA MULILI ............................................. APPLICANT
AND
DISTRICT COMMISSIONER KITUI
BENJAMIN MUTUNGA MUTEMA ........................ RESPONDENTS
(An application for extension of time to file record
of appeal in the intended appeal against the Ruling
of the Hon Lady Justice Owuor (now a Judge of
Appeal)and Hon Mr. Justice Shaikh Amin delivered at
Nairobi on 30th June, 1998
in
H.C.MISC.APPLICATION NO. 760 OF 1991) *********************** R U L I N G
This is an application underrule 4of the Court of Appeal Rules for extension of time to file a record of appeal. The decision against whichWambua Mulili(the applicant ) wishes to appeal was given on 30th June, 1998. A notice of appeal was filed on 1st July, 1998 and copies of proceedings were supplied on 24th September, 1998. The present application was not brought until 7th January, 1999.
Mr Kiiru who appears for the applicant says that the initial failure to file an appeal was the fault of the Advocate who was previously acting for the applicant. Mr Kiiru himself was instructed by the applicant early in October 1998, but he took no steps to lodge an appeal. His explanation for this lapse is that he needed time to familiarise himself with the issues in the case. He also said something to the effect that in December most offices are closed and people do not work. The effect of all this is that the prolonged delay from 1st July 1998 to 7th January, 1999 has not been satisfactorily accounted for and on this ground alone this application should fail.
There is a second reason why the application must fail. On the Notice of Motion the applicant only seeks an extension of time to lodge a record of appeal. The time stipulated under the Rules for lodging an appeal having passed, there is no valid notice of appeal in existence. So even if I had found that the delay could be excused, it would have been pointless to grant the relief sought because a record of appeal cannot be filed without a notice of appeal. In the end this application fails and is dismissed with costs to the second respondent.
Dated and delivered at Nairobi this 13th day of July, 1999.
R. O. KWACH ---------------- JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR