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Court of AppealAllowedCivil Application (Nyeri) - extension of time application under rule 4 of the Court of Appeal Rules

Gikara Kiriamburi v Wahome Githinji [1986] KECA 60 (KLR)

Court of Appeal of Kenya
23 May 1986
1,564 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a late appeal even without a draft memorandum, but warned that missing a certificate of delay makes the application much harder.

What this practically means

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Executive summary

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This was a single-judge application under rule 4 of the Court of Appeal Rules for extension of time within which to institute a second appeal. The underlying dispute, originating in the Senior Resident Magistrate's Court at Nyeri as Civil Suit 127 of 1981, concerned two adjoining plots of land at Aguthi/Mungaria. By consent the suit was referred to arbitration; the applicant's application to set aside the award was dismissed and judgment entered in terms of the award. The applicant's first appeal to the High Court was dismissed by JS Patel J on November 19, 1985, and a Notice of Appeal to the Court of Appeal was filed promptly, but no memorandum of appeal was filed in time. The respondent objected that the supporting affidavit exhibited no draft memorandum of appeal and gave no indication of the grounds of appeal or prejudice. Hancox JA reviewed the authorities requiring an applicant to disclose the nature of the case and grounds of appeal, including Shah v Jamnadass, Bhatt v Tejwant Singh and Pollok House Ltd v Nairobi Wholesalers Ltd, and agreed with Potter JA in Mehrunnissa v Parvez (No 2) that failure to obtain a certificate of delay does not bar a rule 4 application. Gleaning sufficient material from the two lower court files that the appeal was not entirely without prospects of success, the court allowed the application and extended time to June 9, 1986, with costs of the application to the respondent in any event.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted an extension of time within which to institute a second appeal, given the absence of a draft memorandum of appeal or other information as to the grounds of appeal
  2. 2.Whether failure to obtain a certificate of delay under the proviso to rule 81(1) precludes an extension of time under rule 4
  3. 3.Whether the intended appeal has prospects of success

Key legal issues

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01

Duty of an applicant for extension of time to disclose the nature of the case and grounds of appeal

Holding

The court affirmed the long-standing rule in Shah v Jamnadass, as adopted in Bhatt v Tejwant Singh, that an applicant must give sufficient information about the judgment and grounds of appeal; however, the court retained discretion to grant extension where the delay would have been covered by a certificate of delay and the appeal is not without merit.

Reasoning

The court reviewed the line of authority from Shah v Jamnadass through Bhatt v Tejwant Singh to Pollok House Ltd v Nairobi Wholesalers Ltd, all insisting on disclosure of the nature of the case. Nonetheless, following Potter JA in Mehrunnissa v Parvez, the judge held the court may dispense with that information where the delay would have been automatically excused by a certificate of delay, and where the lower court files show the appeal is not entirely without prospects of success.

p. 3
02

Effect of failure to obtain a certificate of delay

Holding

Failure to obtain a certificate of delay under the proviso to rule 81(1) does not bar an application under rule 4, though it leaves the applicant to justify the delay on the merits of the application.

Reasoning

Potter JA in Mehrunnissa v Parvez (No 2) held that had the applicant obtained a certificate of delay, there would have been an automatic extension since the request letter was copied to the respondent as required by rule 81(2). Hancox JA agreed, holding that the absence of a certificate does not preclude a rule 4 application but makes the applicant's task harder.

p. 2

Legal principles established

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  • An applicant for extension of time must support the application with a sufficient statement of the nature of the case and reasons for desiring to appeal, enabling the court to assess potential injustice
  • Failure to obtain a certificate of delay does not preclude an applicant from seeking an extension of time under rule 4, although obtaining one makes the application easier

Court orders

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  1. 1.Extension of time for instituting the appeal to 21 days from the date of the ruling, that is to say by June 9, 1986
  2. 2.Costs of the application to be the Respondent's in any event

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya
First appeal from Senior Resident Magistrate's Court at Nyeri, Civil Suit 127 of 1981
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (as amended) - application for extension of time to institute an appeal

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.

"For these reasons, then, I propose to allow the application and to extend the time for instituting the appeal to 21 days from today, that is to say by June 9, 1986. As in Mehrunnissa's case and for the same reasons I order that the costs of this application will be the Respondent's in any event."
p. 3Disposition - extension of time granted and costs
"It is thus essential, in my view, that an applicant for an extension of time under r 9 should support his application by a sufficient statement of the nature of the judgement and of his reasons for desiring to appeal against it to enable the court to determine whether or not a refusal of the application would appear to cause injustice."
p. 3Duty of disclosure in extension of time applications
"The rule laid down in the passage above quoted from Shah v Jamnadass, is a general but none the less salutary one, and advocates would be well advised to comply with it in all cases, both for the full information of the court and because failure to observe it may well result in their application being refused."
p. 3Consequences of non-compliance with disclosure requirement
"the failure to obtain a certificate of delay does not preclude an applicant from seeking an extension of time under rule 4, though, quite naturally, his task is made much easier if he does so."
p. 2Certificate of delay and rule 4 applications

Issues in the judgment

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minor

The judgment spells the case name inconsistently as 'Mejrumnissa' on first mention and 'Mehrunnissa' later; the two renderings refer to the same case

minor

The case name appears as 'Mehrunnissa v Parves (supa)' with the second party's name spelled 'Parves' rather than 'Parvez'

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, "Gikara Kiriamburi v Wahome Githinji [1986] KECA 60 (KLR)", Case Analysis (1986). Civil Application (Nyeri) - extension of time application under rule 4 of the Court of Appeal Rules. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/60/eng@1986-05-23

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