[2007] KECA 49 (KLR)
The Court of Appeal held that it could not interfere with the single judge's exercise of discretion unless there was a clear misdirection or error in principle. Since the applicant had not explained the forty-two day delay and the single judge found the delay inordinate and unexplained, there was no basis for the...
Source-derived case information.
- Citation
- [2007] KECA 49 (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
- Civil Application / Reference From Single Judge's Decision on Extension of Time
- 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
Civil Application / Reference From Single Judge's Decision on Extension of Time
Legal Issues
- 1 Whether the Court of Appeal can substitute its discretion for that of a single judge in an application for extension of time.
- 2 Whether the delay in filing the notice and record of appeal was sufficiently explained to warrant extension of time.
Ratio Decidendi
The Court of Appeal held that it could not interfere with the single judge's exercise of discretion unless there was a clear misdirection or error in principle. Since the applicant had not explained the forty-two day delay and the single judge found the delay inordinate and unexplained, there was no basis for the appellate court to substitute its own discretion. The reference was therefore dismissed with costs to the respondent.
Court Disposition
Reference dismissed with costs to the respondent.
Orders
- The reference is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE COURT OF APPEAL OF KENYA PEAL
AT NAKURU
Civil Appli, Nai 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 at Kericho (Mr. Justice Luka Kimaru) dated 3rd November, 2006
in
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