PENINAH MONGINA; ALPHONSE NYAGIRO V. WALTER MASESE MAKORI; RACHAEL KEMUNTO KAMANDA

RULING OF THE COURT

This is a reference from the decision of a single Judge (Tunoi, J.A.) delivered at Kisumu on 14th June, 2004 in which he dismissed the applicant’s application for extension of time for filing and serving the Notice of Appeal, the Memorandum of Appeal and the Record of Appeal. That application for extension was, of course, brought under rule 4 of the Court of Appeal Rules (the Rules).

When this reference came up for hearing before us on 17th June, 2005, Mr. Odunga, for the applicant, reminded us of the principles to be applied. He pointed out that the learned single Judge did not take into account relevant matters or took into account irrelevant matters. It was Mr. Odunga’s contention that paragraphs 7, 8 and 9 of the applicant’s supporting affidavit contained what he considered sufficient explanation for the delay.

As regards the delay attributed to the applicant’s counsel, it was Mr. Odunga’s submission that mistake of counsel should not be visited on the applicant.

A…