THOMAS OCHIENG’ vs RANMAL MERAG LTD [1984] KECA 11 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction where a prior appeal was struck out
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
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.
Service on persons directly affected
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
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.
Explanation for delay under Rule 4
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
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.
Admissibility of a supplementary affidavit filed without leave
The court considered the supplementary affidavit filed without the leave required by Rule 43(2) despite the respondent's objection
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.
Legal principles established
#- 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
#- 1.Extension of time for instituting the appeal until 28 days from the date of the ruling, that is 7th January 1985
- 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.Applicant to pay the costs of the application within twenty-eight days of taxation
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.