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Court of AppealDismissedNot stated in judgment

Philiph Kipkosgei Ruto v Republic [2001] KECA 172 (KLR)

Court of Appeal of Kenya
24 September 2001
EOE. Owuor
174 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend a prisoner's appeal deadline because he gave two different explanations for the delay.

What this practically means

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Executive summary

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This is a short single-judge ruling of the Court of Appeal at Nakuru delivered on 24th September 2001 by Owuor, JA, dismissing an application for extension of time to lodge a Notice of Appeal. The applicant's appeal in the superior court had been dismissed on 27th July 2000, and he sought leave to appeal out of time. In his supporting affidavit he explained the delay by stating that he had been sentenced before the Kericho High Court and that the fourteen-day period expired while his transfer to Nakuru Prison was being prepared. However, when he appeared before the Court he advanced a different explanation, alleging that the delay was due to lack of money to engage an advocate, his family having promised but failed to instruct one. The judge found the applicant was not being candid with the Court, noting the shift between his sworn explanation and his oral submissions. On that basis the judge declined to exercise the discretion in the applicant's favour and dismissed the application. No costs order is recorded, no authorities were cited, and the judgment does not identify the case number, the parties by name, or the specific rule governing the application. The decision illustrates that an applicant for extension of time must offer a candid and consistent account of the delay, and that contradictory explanations disentitle him to the Court's discretionary indulgence.

Questions the Court framed

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

  1. 1.Whether the applicant had given a satisfactory explanation for the delay in lodging his Notice of Appeal
  2. 2.Whether the Court should exercise its discretion to extend time where the applicant's explanations were inconsistent and lacked candour

Key legal issues

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01

Candour and consistency in explaining delay in lodging a Notice of Appeal

Holding

The Court declined to extend time because the applicant's explanations were contradictory - first attributing the delay to his transfer from Kericho High Court to Nakuru Prison, then in oral submissions to lack of funds to engage an advocate - and the Court found him not candid.

Reasoning

The applicant's sworn affidavit attributed the delay to his sentencing at Kericho High Court and his transfer to Nakuru Prison expiring the fourteen-day period. In court he instead blamed lack of money to engage an advocate after his family failed to do so. The Court treated this shift as demonstrating a lack of candour, which disentitled him to the discretionary relief of extension of time.

p. 2

Legal principles established

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  • An applicant for extension of time must give a candid and consistent explanation for the delay; a party who is not candid with the Court forfeits the exercise of the Court's discretion in his favour.

Court orders

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  1. 1.The application for extension of time to lodge the Notice of Appeal is dismissed

The bench

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

EO
majority

Wrote the judgment

On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Inherent discretion to extend time for filing a Notice of Appeal under the appellate rules (provision not specified in the judgment)

Relief refused

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Extension of time to file the Notice of Appeal

The applicant gave shifting and unconvincing explanations for the delay and was found not to be candid with the Court

p. 2

Costs

No costs order recorded in the judgment

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.

I am of the view that the applicant is not being candid with the Court. I am unable to exercise my discretion in his favour in the result that the application is hereby dismissed.
p. 2Refusal of extension of time for lack of candour
That your honour I was sentenced before Kericho High Court and that my fourteen days expired while my transfer was prepared to be taken to Nakuru Prison
p. 2Applicant's sworn explanation for the delay
In his submission to me in court he changed his story and alleged that the delay to file the appeal was due to lack of money to engage an advocate.
p. 2Inconsistency between affidavit and oral submissions

Issues in the judgment

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minor

The judgment does not state the case number, the parties' names, the respondent's identity, or the specific rule under which the extension of time was sought; the decision below is identified only by its dismissal date of 27th July, 2000.

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, "Philiph Kipkosgei Ruto v Republic [2001] KECA 172 (KLR)", Case Analysis (2001). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/172/eng@2001-09-24

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