ALI MASOUD MWAKILEO vs A Y A JIWAJI AND JIWANJI [1985] KECA 109 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for extension of time for serving the notice of appeal, listed for hearing in Mombasa, should be adjourned
- 2.Who should bear the costs of the abortive hearing of the application
- 3.What directions should issue regarding the main appeal, Civil Appeal 12 of 1986, listed before the full bench
Key legal issues
#Adjournment and costs of an application for extension of time for service of notice of appeal
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.
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.
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.Adjournment of the application for extension of time granted
- 2.Applicant to pay the costs of the day's abortive hearing of the application to the respondent in any event
- 3.Main appeal, Civil Appeal 12 of 1986, taken out of the list and to be re-listed for the next sessions
- 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.
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
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.
I order that the main appeal be taken out of the list and be re-listed for the next sessions.
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.
Issues in the judgment
#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.
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.