Adera v Machinery Services [1981] KECA 33 (KLR)
The bottom line
#Kenya's Court of Appeal refused to excuse an 80-day delay in serving appeal documents, blaming the advocate and finding the appeal hopeless.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be granted an extension of time within which to serve the memorandum and record of appeal on the respondent, some eighty days out of time
- 2.Whether the intended appeal had any merit or reasonable prospects of success
Key legal issues
#Extension of time for service of appeal documents
The application for extension of time was refused because the delay was attributable entirely to the applicants' advocate, who misplaced the copies of the record of appeal for almost three months and failed to serve within seven days of lodging as required by rule 87.
The record was lodged on June 11, 1980, the last day under Rule 81. Service of the memorandum and record on the respondent, required within seven days under rule 87, was not effected until September 6, some eighty days late. The advocate explained that the copies were misplaced on June 14 and returned only on September 5 by a relative who had taken them to Mombasa among some magazines. The court found the applicants had not shown the failure was anyone's fault but their own.
Merits of the intended appeal
The intended appeal, which turned on whether the Lister engine was purchased from Machinery Services or from Webuye Quarry, had no merit; the trial judge's findings were amply supported by oral and documentary evidence.
The trial judge found the engine was sold by Machinery Services to Webuye Quarry in November 1974 and by the latter to the applicants in December 1976. The respondent's advocate exhibited an invoice showing sale by Machinery Services to Webuye Quarry on November 25, 1974 of Lister diesel engine Serial Number 270 HRW 3A 24, matching the engine sold to the applicants. The applicants relied on a proforma invoice relating to a different engine and serial number. The court held the appeal had no reasonable prospects of success.
Legal principles established
#- An applicant for extension of time to serve appeal documents must satisfy the court that the failure to file a complete record and serve the appeal documents within the prescribed time was not the applicant's own fault.
- In considering an extension of time application, the court will also examine the merits of the intended appeal, and an appeal without reasonable prospects of success will not be assisted by an extension.
Court orders
#- 1.The application for extension of time within which to serve the appeal documents on the respondent was dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in judgment
- Jurisdiction invoked
- Inherent power to extend time under the Court of Appeal Rules (application for extension of time within which to serve appeal documents)
Relief refused
#Extension of time to serve the appeal documents on the respondent
The delay of about eighty days was the applicants' advocate's own fault and the intended appeal had no reasonable prospect of success
Costs
The application was dismissed with 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.
Mr Ajuang’ has failed to satisfy us that the failure to file a complete record on or before July 11, 1980 or to serve the appeal documents on the respondent within seven days thereafter, was anybody’s fault but his own.
We do not think that there is any merit in the intended appeal or that it would have any reasonable prospects of success.
For the above reasons we dismissed the application with costs.
Issues in the judgment
#The judgment refers inconsistently to the last day for lodging the record, first stating it was June 11 and later referring to a failure to file a complete record on July 11, 1980.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adera v Machinery Services [1981] KECA 33 (KLR)", Case Analysis (1981). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1981/33/eng@1981-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.