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Court of AppealDismissedNot stated in extract

CALEB H AKWERA vs EAST AFRICAN CONSULTANTS [1986] KECA 5 (KLR)

Court of Appeal of Kenya
13 March 1986
AHARW Hancox
269 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a two-year delay in filing an appeal record because the applicant never obtained a certificate of delay.

What this practically means

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Executive summary

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This is a short single-judge ruling of the Court of Appeal at Nairobi, delivered by Hancox, JA on March 13, 1986, on a notice of motion dated July 30, 1985 seeking enlargement of time to file the record of appeal. The action had been begun in 1974 and notice of appeal filed as far back as May 16, 1983. The applicant relied on the exclusion period in rule 81 of the Court's Rules to excuse the delay, but no certificate of delay had been produced, even after a second adjournment, so the exclusion period could not operate. The court computed the deadline on the applicant's own best case: proceedings were collected by counsel on June 11, 1985, making the record due by August 10, 1985; alternatively, reckoning from the court's May 24 letter (proceedings ready for collection, allowing two days for delivery in Nairobi), the 60-day period would have expired on July 25, 1985 — before the motion was filed. Holding that the delays were far too long, Hancox, JA exercised his discretion under rule 4 to refuse the extension for a record that was in effect well over two years overdue, and dismissed the motion with costs. The extract does not name the parties, the appeal number or the court below, so those fields are placeholders.

Questions the Court framed

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

  1. 1.Whether the court should enlarge time for filing the record of appeal under rule 4
  2. 2.Whether the exclusion period under rule 81 could operate absent a certificate of delay

Key legal issues

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01

Extension of time for filing record of appeal

Holding

Extension refused where the delay exceeded two years and no certificate of delay was produced despite adjournments

Reasoning

The court computed the applicable periods: proceedings were collected on June 11, 1985, making the record due by August 10, 1985; alternatively, reckoning from the court's May 24 letter, the 60-day period would have expired on July 25, 1985. The motion was filed July 30, 1985, and the underlying delay dated back to 1983 and the 1974 action. Even after a second adjournment the certificate of delay was not produced, so the rule 81 exclusion could not apply and the discretion under rule 4 was exercised against the applicant.

p. 2

Legal principles established

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  • Without a certificate of delay, the exclusion period under rule 81 cannot operate in computing time for filing a record of appeal

Court orders

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  1. 1.The Notice of motion dated July 30, 1985 is dismissed with costs

The bench

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

AH
majority

Wrote the judgment

Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

Relief refused

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Extension of time for filing the record of appeal

Inordinate and unexplained delay of over two years after the record was due, and no certificate of delay forthcoming

p. 2

Costs

Dismissed with costs (costs awarded to the respondent)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Exercising my discretion under rule 4, I am not prepared to extend the time for filing the record of appeal for what in effect is well over 2 years after it was due.
p. 2discretion on extension of time
The Notice of motion dated July 30, 1985 is accordingly dismissed with costs.
p. 2final orders

Issues in the judgment

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minor

Judgment extract omits the case title, appeal number and parties' names, and appears to be a short single-judge ruling rather than a full appellate judgment

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, "CALEB H AKWERA vs EAST AFRICAN CONSULTANTS [1986] KECA 5 (KLR)", Case Analysis (1986). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/5/eng@1986-03-13

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