[2007] KECA 192 (KLR)
The Court of Appeal held that it could not substitute its own discretion for that of the single judge unless there was a clear misdirection or error, which was not demonstrated in this case. The delay of forty-two days in filing the notice and record of appeal was both unexplained and inordinate. The single judge...
Source-derived case information.
- Citation
- [2007] KECA 192 (KLR)
- Parties
- Applicant: William K. Too; Respondent: Simion K. Langat
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 6 of 2007
- Procedural Posture
- Extension of Time Application / Reference to Full Bench From Single Judge
- Outcome
- Reference dismissed with costs to the respondent.
- Judges
- AM Githinji
- Legal Topics
- Extension of Time, Appeals Process, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William K. Too
Applicant
Simion K. Langat
Respondent
Procedural Posture
Extension of Time Application / Reference to Full Bench From Single Judge
Legal Issues
- 1 Whether the Court of Appeal can interfere with the exercise of discretion by a single judge in refusing to extend time for filing an appeal.
- 2 Whether the delay in filing the notice and record of appeal was explained and excusable.
Ratio Decidendi
The Court of Appeal held that it could not substitute its own discretion for that of the single judge unless there was a clear misdirection or error, which was not demonstrated in this case. The delay of forty-two days in filing the notice and record of appeal was both unexplained and inordinate. The single judge properly exercised his discretion in refusing to extend time, and there was no basis for the full bench to interfere with that decision. Accordingly, the reference was dismissed with costs to the respondent.
Court Disposition
Reference dismissed with costs to the respondent.
Orders
- The reference is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE COURT OF APPEAL OF KENYA
AT NAKURU
Civil Appli 6 of 2007 (NAK. 1/07)
WILLIAM K. TOO ……………….……..……………….APPLICANT
AND
SIMION K. LANGAT ………………….……………RESPONDENT
(An application for extension of time within which to lodge and serve the notice of appeal and record of appeal out of time in the intended appeal from judgment and decree from the decision of the High Court of Kenya Kericho (Mr. Justice Luka Kimaru) dated 3rd November, 2006In H.C.C.C. NO. 5 OF 2003)
**************
RULING OF THE COURT
Mr. Obwatinya, learned counsel for the applicant, appears to think, wrongly in our view, that it is for us to exercise our discretion in this reference and enlarge time for the applicant to appeal.
But the discretion was exercised by the learned single Judge and we, on reference, are not entitled to substitute his exercise of discretion with our own.
It is agreed there was an unexplained delay of some fourty-two days. The learned single Judge considered that delay and concluded that not only was it unexplained but also inordinate. He then refused to extend time. We have not been shown any basis upon which we can interfere with the exercise of his discretion. There is no merit in this reference and we order that it be and is hereby dismissed with costs to the respondent.
Dated and delivered at Nakuru this 28th day of September, 2007.
R.S.C. OMOLO
……………………….
JUDGE OF APPEAL
P. K. TUNOI
………………………..
JUDGE OF APPEAL
E. M. GITHINJI
………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR