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Court of AppealPartially AllowedApplication dated 23rd January, 1989 (Civil Case No. 22 of 1988, High Court at Nairobi)· [1989] KECA 58 (KLR)

Suleiman v Karasha [1989] KECA 58 (KLR)

Court of Appeal of Kenya
17 March 1989
JGJ.M Gachuhi
1,251 words in judgment
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The bottom line

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Kenya's Court of Appeal excused a six-day delay in filing an appeal notice, ruling the Christmas holidays don't count in computing time.

What this practically means

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Executive summary

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This was a single-judge ruling of the Court of Appeal by Gachuhi JA on an application for extension of time to file a notice of appeal. The applicant, a defendant in a High Court suit for specific performance of a contract of sale of land, obtained judgment in default of appearance and failed to set it aside. He intended to appeal the ruling dismissing his application to set aside the ex-parte judgment, but confusion between two orders - the Tanui J ruling of 30th November 1988 and an eviction ruling of Mbaluto J of 5th December 1988 - led him to base his extension application on the wrong order. He sought leave to amend the motion to refer to the correct ruling. The court granted the amendment, following Cheleta Coffee Plantations Ltd v Eric Mehlsen and General Manager E.A.R & H.A v Thierstein, holding that amendments may be allowed at any time before judgment even after conclusion of hearing where no prejudice results. On extension of time, the court excluded the festive period from 21st December to 6th January in computing time, held the six-day delay not inordinate (compounded by the 25th independence celebrations), and extended time to 7th January 1989 under rule 4 of the Court of Appeal Rules. The court declined to consider the merits of the intended appeal, noting the applicant wished to appeal in principle on the ground of non-service of summons. Costs of the amendment and of the application were awarded to the respondent. The decision below was not disturbed; the ruling is interlocutory in nature and was made subject to reference to the full bench.

Key legal issues

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01

Leave to amend after conclusion of hearing

Holding

The amendment to substitute the correct order appealed against was allowed; the authorities show amendment may be granted even after hearing where the other party suffers no prejudice.

Reasoning

The court relied on Cheleta Coffee Plantations Ltd v Eric Mehlsen and General Manager E.A.R & H.A v Thierstein, where amendments were allowed after the conclusion of hearing. It found no basis for resisting the amendment correcting the order appealed against, since the confusion arose from two orders and the applicant had a genuine argument on service.

p. 2
02

Extension of time for filing notice of appeal

Holding

A six-day delay was not inordinate; the festive season and the exclusion of the 21st December to 6th January period justified excusing the delay and extending time to 7th January 1989.

Reasoning

The notice ought to have been filed on 14th December 1988 but was filed on 22nd December. Excluding the festive period, it could be treated as filed on 7th January 1989. The 25th independence celebrations also made it difficult to instruct counsel. The discretion under rule 4 of the Court of Appeal Rules was exercised in the applicant's favour.

p. 2
03

Relevance of execution of the decree

Holding

Execution of the decree did not defeat the extension application; the applicant could appeal as a matter of principle on the issue of non-service.

Reasoning

The respondent argued there was no point in allowing the application since the decree had been executed, the applicant evicted and a charge created. The court noted the applicant wished to appeal as a matter of principle, claiming he was never served with summons and had a good defence. The court limited itself to the extension question without examining merits.

p. 2

Legal principles established

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  • Amendment of pleadings/motions may be allowed at any time before judgment, even after hearing has concluded, so long as no prejudice is caused.
  • On an extension-of-time application, the court does not consider the merits of the intended appeal.
  • The period 21st December to 6th January is excluded when computing time for filing pleadings or doing any act.

Court orders

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  1. 1.Leave granted to amend the Notice of Motion to read that the ruling to be appealed against is that of 30th November, 1988 and not that of 5th December, 1988
  2. 2.Costs occasioned by the amendment allowed to the respondent
  3. 3.Extension of time for filing the intended notice of appeal under rule 4 to 7th January 1989
  4. 4.The notice of the intended appeal to be served on the respondent within 7 days from the date of the ruling
  5. 5.Costs of the application awarded to the respondent
  6. 6.Any party aggrieved may apply to the Deputy Registrar within seven days to refer the ruling for determination by the full bench
On appeal from
High Court at Nairobi
Civil Case No. 22 of 1988
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "Suleiman v Karasha [1989] KECA 58 (KLR)", Case Analysis (1989). Application dated 23rd January, 1989 (Civil Case No. 22 of 1988, High Court at Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1989/58/eng@1989-03-17

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