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Court of AppealPartially AllowedCivil Application (Kisumu) - rule 4 application for extension of time· [1984] KECA 11 (KLR)

THOMAS OCHIENG’ vs RANMAL MERAG LTD [1984] KECA 11 (KLR)

Court of Appeal of Kenya
10 December 1984
1,731 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed it can revive a struck-out appeal if the applicant explains the delay and meets strict conditions, including serving auction purchasers.

What this practically means

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Executive summary

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This was a single-judge application under Rule 4 of the Court of Appeal Rules (Cap 9) for leave to institute an intended appeal out of time against a decision of Schofield, J. of 2nd November 1983, dismissing an application to set aside the proposed sale of the applicant's property, Bukhayo/Mundika/1525, sold in execution of a decree on a dishonoured cheque. An earlier appeal had been struck out on 22nd June 1984 on technical grounds, including late institution. Relying on Belinda Murai v Amos Wainaina (as upheld by the full court) and Ngoni-Matengo Co-operative Marketing Union Ltd v Alimohamed Osman, Hancox, JA held that the striking out of an appeal is not a dismissal, so the Court retained jurisdiction to entertain the fresh application. Applying Taracisio Githaiga Ruthibo v Mbuthia Njungi, he further held that the good-faith auction purchaser was a person directly affected by the appeal who should have been served with the notice of appeal and the application. Although the applicant offered no satisfactory explanation for a delay of some four and a half to six months, and there was evidence of delaying tactics and non-compliance with court orders, the judge was persuaded that the appeal had never been heard on its merits. He extended time for institution until 7th January 1985, but on conditions: rendering certified accounts of rents received and depositing them in court, paying the costs of the application within twenty-eight days of taxation, and serving the notice of appeal and application on the purchaser. In default of compliance, the application would stand dismissed. The application was therefore allowed on terms.

Key legal issues

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01

Jurisdiction where a prior appeal was struck out

Holding

The Court has jurisdiction to hear an application for extension of time notwithstanding a prior order striking out the appeal, because striking out is not dismissal

Reasoning

Relying on the ruling of Law, JA in Belinda Murai v Amos Wainaina, later upheld by the full court, and the earlier East African authority Ngoni-Matengo, the court held that an order striking out an appeal leaves the underlying right of appeal intact and the Court may entertain a fresh application to extend time for institution.

p. 1
02

Service on persons directly affected

Holding

The auction purchaser of the suit property was a person directly affected by the intended appeal and should have been served with the notice of appeal and the application

Reasoning

Following Taracisio Githaiga Ruthibo v Mbuthia Njungi, where a judgment-debtor whose property was under attachment was held directly affected, the court reasoned that a good-faith purchaser at auction would be considerably affected if the sale were set aside on appeal, even though not a party to the original proceedings.

p. 2
03

Explanation for delay under Rule 4

Holding

Although sufficient reason is no longer required, some explanation for the delay was due; the applicant offered none, but the court nevertheless extended time on conditions because the appeal had never been heard on its merits

Reasoning

The appeal, even computed from the earliest possible date, was four and a half months out of time, and nearly six months to the date of the application. The court weighed the applicant's fault and delaying tactics against the fact that the appeal had never been heard on the merits, and granted a conditional extension.

p. 3
04

Admissibility of a supplementary affidavit filed without leave

Holding

The court considered the supplementary affidavit filed without the leave required by Rule 43(2) despite the respondent's objection

Reasoning

Mr Raichura objected that the supplementary affidavit of 29th November 1984 was filed without leave as required by Rule 43(2). The court nonetheless chose to consider it along with all the other material, exercising its discretion on the material before it.

p. 2

Legal principles established

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  • The striking out of an appeal does not amount to a dismissal, and the Court retains jurisdiction to entertain an application for extension of time to reinstate/re-institute an appeal that was struck out
  • A judgment-debtor whose property is the subject matter of attachment - and by analogy a purchaser at the auction - is a person directly affected by the appeal and must be served with the notice of appeal and the application
  • Even where 'sufficient reason' is no longer required under Rule 4, an applicant for extension of time must offer some explanation for the delay
  • In all applications the substantive rule providing for the power sought should appear in the heading of the Notice of Motion

Court orders

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  1. 1.Extension of time for instituting the appeal until 28 days from the date of the ruling, that is 7th January 1985
  2. 2.Applicant to render to the respondent certified true accounts of all monies received by way of rents in respect of Bukhayo/Mundika/1525 since the court order requiring deposit, and to deposit that sum in court by 7th January 1985
  3. 3.Applicant to pay the costs of the application within twenty-eight days of taxation
  4. 4.Applicant to serve a copy of the Notice of Appeal and of the application on the purchaser of the property by 7th January 1985
  5. 5.In default of compliance with any of these conditions, the application to stand dismissed
On appeal from
High Court of Kenya
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (Cap 9) - extension of time to institute an appeal under Rule 81(1)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "THOMAS OCHIENG’ vs RANMAL MERAG LTD [1984] KECA 11 (KLR)", Case Analysis (1984). Civil Application (Kisumu) - rule 4 application for extension of time. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/11/eng@1984-12-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.