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Court of AppealDismissedNot stated in the judgment· [1996] KECA 169 (KLR)

Michael Mwanda Awandu v The Attorney General

Court of Appeal of Kenya
17 December 1996
ALA.A. Lakha
0 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend appeal deadlines because the applicant offered no explanation for a two-year delay.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi, delivered by Lakha, JA, on 17th December 1996, on an application under rule 4 of the Rules of the Court seeking enlargement of time to file a Notice of Appeal out of time from the judgment of Mwera, J. delivered on 25th June 1992, to serve that notice out of time, and to file the record of appeal. The Court noted that a Notice of Appeal had in fact been filed on 7th July 1992, within time, so the first prayer did not lie. The notice, however, had not been served within time and no reason was given for that default. Counsel for the applicant, Mr. Chebii, could not say when the default was discovered, and the application itself was not filed until 20th July 1994. The Court held that no explanation had been given for the lapse of time since July 1992, and that although its discretion was unfettered, there was no material before it upon which to exercise that discretion in the applicant's favour. The application was accordingly dismissed with costs. The ruling is a concise statement of the principle that an unfettered discretion under rule 4 still requires material explaining the delay before it can be exercised.

Key legal issues

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01

Whether enlargement of time should be granted where no explanation for the delay is offered

Holding

The application was dismissed because the applicant gave no reason for failing to serve the Notice of Appeal within time and no explanation for the lapse of roughly two years before moving the Court.

Reasoning

The Notice of Appeal was filed within time on 7th July 1992, so enlargement for filing did not arise. Service, however, was late and no reason was given. Counsel could not say when the default was discovered, and the application was not made until 20th July 1994. With no explanation for the delay since July 1992, the Court, though its discretion was unfettered, had no material on which to exercise it in the applicant's favour.

p. 1

Legal principles established

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  • Even where the discretion under rule 4 is unfettered, an applicant for enlargement of time must place material before the Court explaining the delay; absent such explanation the Court will decline to exercise its discretion.

Court orders

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  1. 1.The application is dismissed with costs
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Rule 4 of the Rules of this Court (enlargement 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, "Michael Mwanda Awandu v The Attorney General", Case Analysis (1996). Not stated in the judgment. Source:

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