[1997] KECA 126 (KLR)
The Court held that the applicant failed to provide sufficient facts or a satisfactory explanation for the two-year delay in filing the application for extension of time. The Court further held that Rule 54(2) expressly prohibits the introduction of additional evidence at a full court hearing. The single judge's...
Source-derived case information.
- Citation
- [1997] KECA 126 (KLR)
- Parties
- Applicant: William Masakwe; Respondent: Ben Sirengo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 21 of 1995
- Procedural Posture
- Civil Application / Reference to Full Court Against Single Judge's Ruling on Extension of Time
- Outcome
- reference dismissed
- Legal Topics
- Extension of Time, Appeals Process, Admission of Additional Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Masakwe
Applicant
Ben Sirengo
Respondent
Procedural Posture
Civil Application / Reference to Full Court Against Single Judge's Ruling on Extension of Time
Legal Issues
- 1 Whether the applicant had provided sufficient facts to justify extension of time to file notice and record of appeal out of time.
- 2 Whether additional evidence could be introduced at the full court hearing under Rule 54(2) of the Court of Appeal Rules.
Ratio Decidendi
The Court held that the applicant failed to provide sufficient facts or a satisfactory explanation for the two-year delay in filing the application for extension of time. The Court further held that Rule 54(2) expressly prohibits the introduction of additional evidence at a full court hearing. The single judge's exercise of discretion in refusing the extension was correct, and there was no basis to interfere with that decision. Consequently, the reference was dismissed.
Court Disposition
reference dismissed
Orders
- The reference is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
CORAM: KWACH & SHAH, JJ.A. & BOSIRE, AG. J.A.
CIVIL APPLICATION NO. NAI 21 OF 1995
WILLIAM MASAKWE ....................................... APPLICANT
AND
BEN SIRENGO ........................................... RESPONDENT
(Application for leave to file notice of appeal in an intended appeal from a ruling and order of the High Court of Kenya at Kakamega (Tanui J) dated 8th March, 1994 in H.C.C.C. NO. 361 OF 1990) *******************
RULING OF THE COURT
This is a reference to full court against the ruling of the learned single judge of this Court (Lakha, JA). The learned single judge dismissed the application for leave to file notice of appeal and record of appeal out of time. The dismissal arose as a result of there being no sufficient facts before the learned single judge to enable him to exercise his undoubted discretion to so extend the time. The learned single judge was not impressed with the inconsistency shown by the then counsel for the present applicant (referee) on the issue of date of service of the notice of appeal filed on 9th March, 1994.
Nor was the learned single judge impressed with the explanation given for the two year delay in the filing of the application itself. The applicant (referee) has tried to introduce additional evidence before us under Rule 54 (2) of the rules of this Court when the sub-rule expressly says that no additional evidence shall be adduced at a full court hearing like the one now before us. On the material before him, the learned single judge arrived at a correct decision and we see no reason to think otherwise. This reference is dismissed with no order as to costs.
Dated and delivered at Kisumu this 13th day of March, 1997.
R. O. KWACH
---------------
JUDGE OF APPEAL
A. B. SHAH
---------------
JUDGE OF APPEAL
S. E. O. BOSIRE
-------------------
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR