Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealOtherCivil Application Nai. (not fully stated in judgment; related main appeal: Civil Appeal 12 of 1986)

ALI MASOUD MWAKILEO vs A Y A JIWAJI AND JIWANJI [1985] KECA 109 (KLR)

Court of Appeal of Kenya
17 July 1986
315 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal granted an adjournment but made the applicant pay costs for a wasted hearing he could have avoided by checking the cause list.

What this practically means

#

Executive summary

#
This is a short interlocutory ruling delivered by Hancox, JA in Mombasa on 17 July 1986 in an application for extension of time for serving a notice of appeal, connected to the main appeal, Civil Appeal 12 of 1986. Counsel for the applicant, Mr Adere, sought an adjournment on grounds of late service and consequently insufficient time to prepare. The judge observed that the substantive point in the application appeared almost on all fours with the decision in Cassam & Anor v Sachanja & Anor (Civil Application Nai 1 of 1981), and directed that counsel consider that decision. On the adjournment, the judge held that the applicant must have known the court would be sitting in Mombasa and that his clerk could have enquired whether the matter would be listed, noting that the application appeared in the published cause list for Monday 14 July in Mombasa. The adjournment of the application was granted, but the applicant was ordered to pay the respondent the costs of the day's abortive hearing in any event. The main appeal, which had been listed before the full bench, could not be heard until the application was disposed of; Mr Jiwaji for the respondent did not strenuously oppose the adjournment of either the application or the appeal. The appeal was accordingly taken out of the list and ordered re-listed for the next sessions. Because the outcome of the application could not be forecast, the judge considered it unjust to make any order for the costs of the adjournment of the main appeal and reserved those costs until the main appeal was heard.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for extension of time for serving the notice of appeal, listed for hearing in Mombasa, should be adjourned
  2. 2.Who should bear the costs of the abortive hearing of the application
  3. 3.What directions should issue regarding the main appeal, Civil Appeal 12 of 1986, listed before the full bench

Key legal issues

#
01

Adjournment and costs of an application for extension of time for service of notice of appeal

Holding

The application was adjourned, with the applicant paying the costs of the abortive hearing, because he should have known the court would be sitting in Mombasa and could have enquired whether the matter would be listed.

Reasoning

The court noted the substantive point closely resembled Cassam & Anor v Sachanja & Anor. On the adjournment grounds of late service and insufficient preparation time, the judge reasoned the applicant's clerk could have enquired about listing and the matter appeared in the published cause list. Mr Jiwaji did not strenuously oppose the adjournment. The main appeal could not proceed before the application was disposed of, so it was taken out of the list, with adjournment costs reserved.

p. 1

Legal principles established

#
  • An applicant seeking an adjournment of a Court of Appeal application must bear the costs of an abortive hearing where he ought to have been aware of the court's sitting schedule and could have enquired about listing.

Court orders

#
  1. 1.Adjournment of the application for extension of time granted
  2. 2.Applicant to pay the costs of the day's abortive hearing of the application to the respondent in any event
  3. 3.Main appeal, Civil Appeal 12 of 1986, taken out of the list and to be re-listed for the next sessions
  4. 4.Costs of the adjournment of the main appeal reserved until the main appeal is heard

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal over extension of time for service of notice of appeal (provision not stated in the judgment)

Relief refused

#

Immediate disposal of the application on the merits at the hearing

The court adjourned the application rather than determine it, holding the applicant should have known the court would sit in Mombasa and could have enquired about listing

p. 1

Costs

Applicant to pay the respondent the costs of the day's abortive hearing of the application in any event; costs of the adjournment of the main appeal reserved until the main appeal is heard.

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.

In the circumstances I grant the adjournment of the application but I consider the applicant should pay the costs of today’s abortive hearing to the respondent in any event, and I so order.
p. 1Costs of abortive hearing on adjournment
I order that the main appeal be taken out of the list and be re-listed for the next sessions.
p. 1Final orders on the main appeal
it seems to me that it would be unjust to make any order for costs of the adjournment of the main appeal, and I accordingly reserve these until the main appeal is heard. Orders accordingly.
p. 2Reservation of adjournment costs

Issues in the judgment

#
material

The judgment does not state the case title, application number, or the parties' names; the applicant's and respondent's identities must be inferred from appearances of counsel only.

minor

The reference to Cassam v Sachanja suggests the court was directing counsel to consider that decision, but the judgment does not state by whom it was cited.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "ALI MASOUD MWAKILEO vs A Y A JIWAJI AND JIWANJI [1985] KECA 109 (KLR)", Case Analysis (1986). Civil Application Nai. (not fully stated in judgment; related main appeal: Civil Appeal 12 of 1986). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/109/eng@1985-11-14

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