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Court of AppealDismissed

JOSHUA CHEGE WANYOIKE v JAMES THIGA MUKURO [1986] KECA 58 (KLR)

Court of Appeal of Kenya
29 September 1986
JGJM Gachuhi
265 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a request for more time to file an appeal record because the applicant gave no explanation for the delay.

What this practically means

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Executive summary

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This was an ex parte application in the Court of Appeal at Nakuru for extension of time within which to file the record of appeal. The applicant, though duly served with notice of the hearing, failed to attend on two occasions, and the matter proceeded ex parte under rule 55(1). The respondent, Mr Patel, objected that the notice of appeal had been filed out of time: judgment having been delivered on December 3, 1984, the notice should have been filed by December 7, 1984, but was filed on December 21, 1984. Gachuhi, JA held this was clearly out of time, and noted that the applicant had not applied for extension of that time as a step in the appeal; instead, the application before the court concerned only the record of appeal. Even for that application, no reasons for the delay were given, and no affidavit was filed in answer to the respondent's replying affidavit of September 18, 1986. With no explanation from the applicant, the court dismissed the application with costs to the respondent. The judgment is a short single-judge ruling demonstrating that an applicant for extension of time must explain the delay and address a notice of appeal filed out of time before seeking extension to file the record. It binds subordinate courts and the High Court on these discretionary principles as applied to the facts.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for extension of time within which to file the record of appeal should be granted
  2. 2.Whether the applicant had provided reasons for the delay

Key legal issues

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01

Extension of time for filing record of appeal

Holding

The application was dismissed because the applicant filed the notice of appeal out of time without seeking extension, gave no reasons for the delay, and filed no affidavit in response to the replying affidavit

Reasoning

The judgment was delivered on December 3, 1984, making December 7, 1984 the last date for filing a notice of appeal; it was filed on December 21, 1984, clearly out of time. The applicant did not apply for extension of that time and gave no explanation for the delay in filing the record of appeal. Despite service, the applicant did not attend the hearing or respond to the replying affidavit, leaving the court with no basis to exercise discretion in its favour.

p. 1

Legal principles established

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  • An applicant for extension of time must provide reasons for the delay and, where a notice of appeal was filed out of time, must seek extension of time as a preliminary step

Court orders

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  1. 1.The application for extension of time within which to file the record of appeal was dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JG
majority

Wrote the judgment

Jurisdiction invoked
Appellate Jurisdiction Rules (rule 55(1) invoked for ex parte hearing)

Relief refused

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Extension of time to file the record of appeal

The applicant gave no explanation for the delay, the notice of appeal was filed out of time, and no affidavit was filed in answer to the respondent's replying affidavit

p. 1

Costs

Dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

There is nothing I can do but to dismiss this application with costs to the respondent It is so ordered.
p. 1Final orders - dismissal of extension of time application
Even for that application, no reasons have been stated as to the cause of delay.
p. 1Duty of applicant to explain delay
Under the circumstances the hearing proceeded ex parte under rule 55(1).
p. 1Ex parte hearing on service

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "JOSHUA CHEGE WANYOIKE v JAMES THIGA MUKURO [1986] KECA 58 (KLR)", Case Analysis (1986). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/58/eng@1986-09-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.