CARTER & SONS LIMITED vs HARI SINGH & COMPANY LIMITED [1984] KECA 74 (KLR)
The bottom line
#Kenya's Court of Appeal granted a company extra time to appeal because it acted promptly, ruling that registry and opponent-caused delays won't be held against you.
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 application, though brought under rules other than Rule 4, could be granted under Rule 4
- 2.Whether there had been inordinate delay or laches in bringing the application on for hearing
- 3.Whether the supporting affidavit complied with the requirement of stating the nature of the judgment and reasons for appealing per Bhaichand Shah v Jmmadas
- 4.Whether sufficient reason had been shown to extend the time for instituting the appeal
Key legal issues
#Sufficient reason under Rule 4 for extension of time
Sufficient reason was established where the notice of appeal was filed in time, the certified copy was requested simultaneously, and the extension application followed within a week of receiving the copy
The court considered the accumulated authority on what constitutes sufficient reason under Rule 4 and applied it to the facts. The applicant's advocates acted diligently at every stage attributable to them: notice of appeal was filed within the period prescribed by Rule 74(2), the certified copy was requested on the same day, and the extension application was lodged only a week after the copy was supplied on 2nd May 1979. The delay in fixing the hearing was attributable to the registry process and the respondent's own failure to reply to the Deputy Registrar's letter.
Attribution of delay in the hearing of the application
The delay in bringing the application on for hearing was not the applicant's fault; the registry notifies parties of hearing dates, and the delay stemmed from the respondent's failure to reply to the Deputy Registrar
Unlike the High Court where parties attend the registry to take dates, in the Court of Appeal the registry notifies parties. The first notice to attend was not sent until 6th May 1981 because the respondent failed to reply to the Deputy Registrar's letter of 11th May 1979 asking whether it objected to the application. The laches objection therefore failed.
Procedural defects in the application
The applicant's failure to cite Rule 4 and to attach a Registrar's certificate were not fatal; the court nonetheless granted the extension under Rule 4
The respondent objected that the application purported to be brought under four rules other than Rule 4, which confers the extension power, and that no certificate under the proviso to Rule 81 was attached. The court treated these as non-determinative: had a certificate been attached it would have obviated the need to show sufficient reason, but on the facts sufficient reason under Rule 4 was independently shown.
Legal principles established
#- Sufficient reason for extension of time under Rule 4 may be shown where the applicant sought the certified copy of proceedings promptly and filed the extension application shortly after receiving it
- Delay in bringing an application on for hearing is not attributed to an applicant where the registry controls the fixing of hearing dates and the respondent's failure to respond caused the delay
- The proviso to Rule 81 excludes the time taken for preparation and delivery of the certified copy, provided the Registrar has so certified
Court orders
#- 1.Extension of time granted for the applicant to institute the appeal, to be done by 19th March 1984
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Bankruptcy & Winding Up Cause No 19 of 1978
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (power to extend time)
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.
I am satisfied in the instant case that the applicant has shown sufficient reason to extend the time for instituting the appeal, and I direct that it shall do so by 19th March 1984. I make no order as to costs.
since Messrs Khaminwa & Khaminwa applied for the certified copy simultaneously with filing the Notice of Appeal, and since they filed this application only a week after receiving it, that sufficient reason has been shown for extending the time for instituting the appeal
the applicant would also have been covered by the proviso to Rule 81, which excludes the time taken for preparation and delivery of the certified copy, provided the Registrar has so certified.
In my opinion, the delay in bringing the application on for hearing, has not been the applicant’s fault.
Issues in the judgment
#The case name is spelled inconsistently within the judgment: the list of cases referred to reads 'Baichand Shah V Jammadas' while the body reads 'BHAICHAND SHAH v JMMADAS', and the judge's name appears as 'SIR OWN CORRIE' in the body versus 'Sir Owen Corrie' in the case list
The coram line reads 'Hancox, JJA (In Chambers)' although only one Judge of Appeal heard the application in chambers
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CARTER & SONS LIMITED vs HARI SINGH & COMPANY LIMITED [1984] KECA 74 (KLR)", Case Analysis (1984). Civil Application No NAI 8 of 1979. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/74/eng@1984-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.