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    In The Court of Appeal: TH TH

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    wanyama
    The Court of Appeal dismissed an application for extension of time to file an appeal against a High Court judgment from April 2019. The applicant sought to appeal a decision dismissing his suit to restrain the respondent bank from exercising its statutory power of sale over his properties. The Court found the applicant's 17-month delay in filing the application was not sufficiently explained. It held one-time meetings with the respondent bank did not prevent timely filing, and the reasons for delay were not sufficient to warrant an extension of time. The application was therefore dismissed with costs to the respondent.

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    In The Court of Appeal: TH TH

    Uploaded by

    wanyama
    46 views2 pages
    The Court of Appeal dismissed an application for extension of time to file an appeal against a High Court judgment from April 2019. The applicant sought to appeal a decision dismissing his suit to restrain the respondent bank from exercising its statutory power of sale over his properties. The Court found the applicant's 17-month delay in filing the application was not sufficiently explained. It held one-time meetings with the respondent bank did not prevent timely filing, and the reasons for delay were not sufficient to warrant an extension of time. The application was therefore dismissed with costs to the respondent.

    Original Description:

    Civil_Application_117_of_2020

    Original Title

    Civil_Application_117_of_2020

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    The Court of Appeal dismissed an application for extension of time to file an appeal against a High Court judgment from April 2019. The applicant sought to appeal a decision dismissing his suit to restrain the respondent bank from exercising its statutory power of sale over his properties. The Court found the applicant's 17-month delay in filing the application was not sufficiently explained. It held one-time meetings with the respondent bank did not prevent timely filing, and the reasons for delay were not sufficient to warrant an extension of time. The application was therefore dismissed with costs to the respondent.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    46 views2 pages

    In The Court of Appeal: TH TH

    Uploaded by

    wanyama
    The Court of Appeal dismissed an application for extension of time to file an appeal against a High Court judgment from April 2019. The applicant sought to appeal a decision dismissing his suit to restrain the respondent bank from exercising its statutory power of sale over his properties. The Court found the applicant's 17-month delay in filing the application was not sufficiently explained. It held one-time meetings with the respondent bank did not prevent timely filing, and the reasons for delay were not sufficient to warrant an extension of time. The application was therefore dismissed with costs to the respondent.

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    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
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    of 2

    Nelson Omwega Oisebe v Kenya Women Microfinance Bank [2021] eKLR

    IN THE COURT OF APPEAL

    AT KISUMU

    (CORAM: GATEMBU, JA (IN CHAMBERS))

    CIVIL APPLICATION NO. 117 OF 2020

    BETWEEN

    NELSON OMWEGA OISEBE...................................APPLICANT

    AND

    KENYA WOMEN MICROFINANCE BANK.......RESPONDENT

    (Being an application for extension of time to file an appeal out of time from the judgment of the High Court of Kenya at
    Kisii (Majanja, J.) dated 16th April 2019 and for stay of sale by public auction of the applicant’s properties

    in

    Kisii High Court Civil Case No. 19 of 2017)

    ******************

    RULING

    1. In a judgment delivered on 16th April 2019, the High Court dismissed the applicant’s suit against the respondent in which the
    applicant had sought to restrain the respondent from exercising its statutory power of sale. Over 17 months later, on 7th October
    2020 the applicant filed the present application saying that he is aggrieved by that judgment and intends to appeal it to this Court
    and seeks extension of time to do so under Rule 4 of the Court of Appeal Rules.

    2. I have considered the application, the affidavit sworn by the applicant in support, the submissions by W.O. Ochuka &
    Company Advocates for the applicant and the numerous authorities cited, and the replying affidavit sworn by Bernard Kiprotich.

    3. In Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, Supreme Court Application No. 16 of 2014[2014] eKLR the
    Supreme Court of Kenya stated that extension of time is not a right of a party but an equitable remedy available to a deserving party
    at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court;
    that extension of time is a consideration on a case to case basis; that delay should be explained to the satisfaction of the court; and
    that whether there will be prejudice suffered by the respondents if the extension is granted; whether the application is brought
    without undue delay; and public interest are considerations to be borne in mind. See also in Fakir Mohamed vs. Joseph Mugambi

    http://www.kenyalaw.org - Page 1/2


    Nelson Omwega Oisebe v Kenya Women Microfinance Bank [2021] eKLR

    & 2 others [2005] eKLR.

    4. In this case, the only effort made by the applicant to offer an explanation for the delay of over 17 months is in paragraph 7 of
    his supporting affidavit where he deposes that he held several meetings and exchanged several correspondences with the respondent
    in a bid to settle the issues and unfortunately realized that time for filing of the appeal had lapsed.

    5. With respect, I am not satisfied that this is a plausible explanation for the delay involved. The applicant was aware of the
    decision of the High Court in April 2019, and if he was indeed aggrieved, there is nothing that stopped him from filing a notice of
    appeal even as he engaged with the respondent “to settle issues” as he puts it. The period of delay is long. The reasons for delay are
    not sufficient. See Fakir Mohamed vs. Joseph Mugambi & 2 others [2005] eKLR.

    6. Although the court has unfettered discretion under Rule 4 of the Court of Appeal Rules, that discretion should be exercised
    judicially. Each case must be considered on its own facts. In relation to the present case, I am not satisfied that there are sufficient
    grounds for the exercise of discretion in the applicant’s favour.

    7. The application fails and is hereby dismissed with costs to the respondent.

    DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MARCH, 2021.

    S. GATEMBU KAIRU, (FCIArb)

    .....................................

    JUDGE OF APPEAL

    I certify that this is a true

    copy of the original.

    Signed

    DEPUTY REGISTRAR

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