William K. Too v Simon K. Langat [2007] KECA 371 (KLR)
The bottom line
#The Court of Appeal refused to revive a late appeal because the 42-day delay was never explained, even though the appeal looked promising.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether time should be extended within which to lodge and serve the Notice of Appeal and record of appeal in the intended appeal
- 2.Whether the delay of 42 days (after deducting the Christmas vacation) was adequately explained
Key legal issues
#Whether the delay of 42 days (after deduction of the Christmas vacation) warranted extension of time to file the Notice of Appeal and record of appeal
The application was dismissed because the delay was unexplained and of such magnitude that the court declined to exercise its discretion in the applicant's favour.
The court identified the relevant considerations as the length of the delay, the reason for the delay, and the arguability of the intended appeal. While issues in the intended appeal appeared arguable, the reasons for the delay were inadequately explained — the advocate merely asserted the judgment came to his notice late, with no explanation of whether notice of the delivery date was given. The court computed the delay at 66 days, deducted the 24-day Christmas vacation (22 December to 13 January), and found the resulting 42-day unexplained delay too long to excuse.
Jurisdiction of a single judge of appeal over applications for stay of execution
A single judge of appeal has no jurisdiction to hear an application for stay, which must be taken under rule 52(2)(b) of the Court of Appeal Rules.
The applicant's prayer for stay of execution was rightly abandoned by counsel because, under rule 52(2)(b) of the Court of Appeal Rules, an application for stay cannot be entertained by a single judge sitting alone. This left only the extension-of-time prayer for determination.
Legal principles established
#- The matters relevant to the exercise of a single judge's unfettered discretion on an application for extension of time are the length of the delay, the reason for the delay, and possibly the arguability of the intended appeal.
- A single judge of appeal has no jurisdiction to entertain an application for stay of execution.
- The Christmas vacation period is to be deducted when computing the length of delay in filing an appeal.
Court orders
#- 1.The application for extension of time is dismissed with costs
- 2.Prayer for stay of execution abandoned (not granted)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Jurisdiction invoked
- Court of Appeal Rules, rule 52(2)(b) — single judge of appeal exercising unfettered discretion on extension of time
Relief refused
#Stay of execution of the judgment intended to be appealed against
A single judge of appeal has no jurisdiction to hear an application for stay
Extension of time to lodge and serve the Notice of Appeal and record of appeal
The delay of 42 days was of such magnitude and so inadequately explained that the discretion was not exercised in the applicant's favour
Costs
The application is dismissed with costs (costs to the respondent).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the matters relevant to the exercise of the judge’s unfettered discretion as a single judge are the length of the delay, the reason for the delay, and possibly, the arguability of the intended appeal.
I, sitting as a single judge of appeal, have no jurisdiction to hear an application for stay (see rule 52 (2)(b) of the Court of Appeal Rules.)
A delay of this magnitude without any explanation is, in the circumstances of this case, such that I decline to exercise my unfettered discretion in favour of the applicant for an extension of time.
The application is therefore dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William K. Too v Simon K. Langat [2007] KECA 371 (KLR)", Case Analysis (2007). Civil Application (Nakuru) — Notice of Motion dated 8th January 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/371/eng@2007-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.