Wilson Simiyu Peter v Republic

The single judge considered the application and the submissions of both parties together with the applicable principles for extension of time. The applicant attributed the delay to non-receipt of directions on a notice of appeal he claimed to have lodged at the High Court, but annexed no such notice, and the respondent contended that a delay of over seven years was inordinate, inexcusable and unsupported by any evidence of the notice. The judge found the delay evidently inordinate and not satisfactorily explained, and declined the extension of time.

The ruling distinguishes assertion from proof. The applicant's entire explanation rested on a purported notice of appeal said to have been lodged at the High Court, on which directions were never received. The application, however, carried no copy of that notice, and the respondent pointed out that no evidence supported the averment. With the explanation unsubstantiated, the delay of over seven years stood unexcused, and the applicant could not show himself a deserving party entitled to the discretionary remedy available under rule 4 of the Court of Appeal Rules.