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(2006) JELR 105472 (CA)

Court of Appeal  •  Civil Appeal 352 of 2005  •  19 Jun 2006  •  Kenya

Philip Nyamu Waki



The notice of motion before me seeks an order for extension of time, under rule 4 of the rules of this Court within which to serve a notice of appeal filed on 05.10.05. The intended appeal is against the ruling of the superior court (Tanui, J.) made on 27.09.05 at Kisumu and therefore the filing of the notice of appeal was timeous. But service of it was made on 13.10.05 which, by dint of rule 76 of the rules, was one day out of time. That is why this application is made.

On the face of it, that delay is not in inordinate, but the discretion donated under rule 4 is not for exercise whimsically. As I stated in Fakir Mohammed v. Joseph Mugambi and 2 others Civil Application Nai. 332/04 (Nyr. 32/04) (ur):

“The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the stricture of “sufficient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. Th…

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