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Court of AppealDismissedNot stated in the judgment· [1987] KECA 15 (KLR)

Waihenya v Kaninu [1987] KECA 15 (KLR)

Court of Appeal of Kenya
6 November 1987
APApaloo
505 words in judgment
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The bottom line

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The Court of Appeal struck out an application because the amended motion was filed 15 days late instead of within the mandatory 48-hour window.

What this practically means

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Executive summary

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This is a ruling delivered by Apaloo JA on November 6, 1987 concerning the competency of a notice of motion filed in the Court of Appeal on March 2, 1987. When the motion came before Masime Ag JA on October 13, 1987, procedural defects were discovered and the applicant was granted leave to amend, without any time period being specified. Counsel filed the amended motion on October 28, 1987, fifteen days later. At the hearing on November 3, 1987, respondent's counsel objected that under rule 44(2) of the Court of Appeal Rules the amendment should have been lodged within 48 hours of the grant of leave, and that failure meant the leave had lapsed and the application was incompetent. Applicant's counsel conceded unawareness of the rule, explaining the delay by the difficulty of obtaining an affidavit from an elderly client in a rural area. Apaloo JA held that rule 44(2) is mandatory: non-compliance causes the leave to determine, so the applicant had not set on foot a proper application and the motion could not be entertained. While expressing sympathy for an applicant driven from the judgment seat without a hearing, the court held that it is governed by rules of law, not individual hardship, and dismissed the application with costs to the respondent. The judgment establishes that mandatory procedural time limits bind the court and cannot be relaxed out of sympathy.

Key legal issues

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01

Effect of failure to file amended motion within 48 hours of leave under rule 44(2)

Holding

The leave to amend is deemed withdrawn and the court cannot entertain the incompetent application, however sympathetic the circumstances

Reasoning

The applicant obtained leave to amend on October 13, 1987 but filed the amended motion on October 28, 1987. Rule 44(2) provides in mandatory terms that failure to comply causes the leave to determine. Although the judge would have exercised discretion in the applicant's favour had it been a discretionary matter, the rule's mandatory language bound the court. Sympathy for an elderly rural applicant could not override the rule of law.

p. 2

Legal principles established

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  • Where leave to amend is granted without a specified time, rule 44(2) mandatorily requires the amendment to be lodged within 48 hours, failing which the leave lapses and the application cannot be entertained
  • Compliance with mandatory procedural rules cannot be displaced by judicial sympathy or individual hardship

Court orders

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  1. 1.The application was dismissed
  2. 2.Costs awarded to the respondent
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules, specifically rule 44(2)

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, "Waihenya v Kaninu [1987] KECA 15 (KLR)", Case Analysis (1987). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/15/eng@1987-11-06

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