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Court of AppealDismissedCivil Application No. Nai. 32 of 1998· [1999] KECA 100 (KLR)

MUNGAI MUNA vs ESMAEL N. MUNGAI [1999] KECA 100 (KLR)

Court of Appeal of Kenya
2 February 1999
JGJ.E. Gicheru
355 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time for an appeal because the applicant delayed over five years after a previous extension.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Nairobi delivered by Gicheru, J.A. on 2nd February 1999 in Civil Application No. Nai. 32 of 1998, in which Mungai Muna sought extension of time to lodge the record of an intended appeal against the judgment and decree of the High Court of Kenya at Nairobi (Akiwumi, J.) dated 5th June 1989 in H.C.C.C. No. 2770 of 1981. The applicant had previously been granted a 30-day extension on 18th October 1993 to lodge the record but failed to comply; his notice of appeal was struck out on 19th September 1997 for that non-compliance. In the present application he explained the delay by financial incapacity and stated that Kituo Cha Sheria had agreed to prepare the notice and record of appeal if time were extended. The court noted that over five years had elapsed since the earlier extension and that the present application did not seek extension of time within which to lodge the notice of appeal. In view of the applicant's dilatoriness, the judge declined to exercise his discretion under rule 4 of the Court of Appeal Rules in the applicant's favour. The application for extension of time was dismissed with costs. No authorities were cited and the ruling contains no separate opinions; it is a short discretionary decision rather than a judgment setting binding precedent.

Key legal issues

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01

Whether extension of time should be granted to lodge the record of an intended appeal where a prior extension was not complied with and the notice of appeal was struck out

Holding

The application was refused. The court weighed the applicant's financial incapacity and assistance now obtained from Kituo Cha Sheria against over five years of delay and the fact that the application did not seek extension of time to lodge the notice of appeal, and declined to exercise its rule 4 discretion in the applicant's favour.

Reasoning

The applicant had been granted a 30-day extension on 18th October 1993 but failed to lodge the record, and his notice of appeal was struck out on 19th September 1997 for that non-compliance. The present application, filed over five years after the earlier extension, did not seek extension of time to lodge the notice of appeal. Given this dilatoriness, the judge declined to exercise his discretion under rule 4 in the applicant's favour and dismissed the application with costs.

p. 2

Legal principles established

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  • A single judge sitting in chambers may decline to exercise discretion under rule 4 of the Court of Appeal Rules to extend time where the applicant has been dilatory and the application does not seek to revive a notice of appeal already struck out.

Court orders

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  1. 1.The applicant's application for extension of time within which to lodge his intended appeal is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2770 of 1981
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "MUNGAI MUNA vs ESMAEL N. MUNGAI [1999] KECA 100 (KLR)", Case Analysis (1999). Civil Application No. Nai. 32 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/100/eng@1999-02-02

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