Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application (Nyeri)· [1995] KECA 16 (KLR)

Gitahi Gateru & another v Simon M. Kimondo [1995] KECA 16 (KLR)

Court of Appeal
12 May 1995
ROR.S.C Omolo
902 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to extend time to appeal because the applicants lacked the leave they needed, making the extension pointless.

What this practically means

#

Executive summary

#
In a single-judge application under Rule 4 of the Court of Appeal Rules, Gitahi Gateru and Richard Gathua Gitahi sought extension of time to file a notice of appeal against a High Court (Nyeri) ruling of 17 March 1992 by Tunoi J, which dismissed their application to set aside an arbitration award over land parcel Mahiga/Munyange/1 and entered judgment for the respondent in terms of the award. Omolo JA held that the applicants did not allege the judgment was in excess of or not in accordance with the award, so they had no automatic right of appeal under Order 42 Rule 1(1)(bb); their only route was leave, which the High Court had refused, and they had never applied to the Court of Appeal for leave under Rule 39(b). Granting an extension of time without leave would therefore be futile, and no court is bound to grant futile orders. Although the applicant's delay of over a year might have been excused given intervening applications and a change of advocates, the application was dismissed with costs to the respondent on 12 May 1995 at Nyeri.

Key legal issues

#
01

Whether extension of time can be granted where the intended appeal requires leave that was never obtained

Holding

No; the application was dismissed because without leave to appeal, an extension of time to file a notice of appeal is a futile exercise

Reasoning

The judgment entered after refusal to set aside the award was not alleged to be in excess of or contrary to the award, so the automatic right of appeal under Order 42 Rule 1(1)(bb) did not apply. Leave from the High Court was refused, and the applicants never applied to the Court of Appeal for leave under Rule 39(b). Extension of time would therefore be pointless, and no court is bound to make futile orders, even though the delay itself might have been excused.

p. 2

Legal principles established

#
  • A court should not grant futile orders; where a party can only appeal with leave and has not obtained it, extension of time to file a notice of appeal serves no purpose
  • The automatic right of appeal under Order 42 Rule 1(1)(bb) applies only where the judgment and decree are alleged to be in excess of or not in accordance with the arbitration award; otherwise leave is required

Court orders

#
  1. 1.The application for extension of time be dismissed with costs to the respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 45 Rule 15(1)
  • Civil Procedure RulesOrder 45 Rule 17(1)(c)
  • Civil Procedure RulesOrder 45 Rule 17(2)
  • Civil Procedure RulesOrder 42 Rule 1(1)(bb)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 39(b)

Cases cited (1)

  • Jotham Gichuki Ruhara v Wangui Kabuga & Another
    Civil Appeal No 35 of 1986 (unreported)
On appeal from
High Court
HCCC No. 38 of 1981
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application for extension of time)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gitahi Gateru & another v Simon M. Kimondo [1995] KECA 16 (KLR)", Case Analysis (1995). Civil Application (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/16/eng@1995-05-12

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