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Court of AppealAllowedCivil Application (Notice of Motion dated 19th February 1997)· [1997] KECA 109 (KLR)

SAMUEL KURIA v MBUGUA KIMANI [1997] KECA 109 (KLR)

Court of Appeal of Kenya
5 June 1997
ROR. S. C. Omolo
728 words in judgment
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The bottom line

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The Court of Appeal allowed a delayed appeal to proceed, but ruled that failing to send a copy of your request for court proceedings to the other side costs you valuable time exclusions.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by Omolo, JA, on 5th June 1997, on a notice of motion seeking enlargement of time to file an appeal against a High Court judgment delivered on 17th February 1994. The applicant filed his notice of appeal within time and served it, but his letter of 1st March 1994 bespeaking proceedings from the Deputy Registrar was not copied to the respondent, who was acting in person. The proceedings were only ready on 30th July 1996; the appeal was filed on 22nd August 1996. The court held that under Rule 81(2) of the Court of Appeal Rules, the exclusion of the period taken to prepare proceedings is permissible only where the written request for proceedings is copied to the respondent. Because that was not done, the applicant could not rely on the proviso to Rule 81(1) or the certificate of delay, and the intervening period of slightly over two years counted against him. Nevertheless, considering that the notice of appeal was filed in time, the proceedings were collected and paid for promptly when ready, and the record was served, the judge held that the applicant's 'lame' explanation of counsel's oversight did not deprive the court of its unfettered discretion. The application was allowed and the orders in paragraphs 2 and 3 of the motion granted, with costs of the motion to the respondent.

Key legal issues

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01

Effect of failure to copy the request for proceedings to the respondent

Holding

The applicant loses the benefit of the proviso to Rule 81(1) and the certificate of delay; the whole period of preparation of proceedings counts in computing the time for filing the appeal.

Reasoning

Rule 81(2) makes a copy of the letter requesting proceedings to the respondent a condition precedent to exclusion of time. The applicant bespeaked proceedings on 1st March 1994 but did not copy the letter to the respondent, who was acting in person. Consequently the period until 30th July 1996, when the proceedings were ready, could not be excluded, producing a delay of slightly over two years.

p. 2
02

Whether the court's discretion to enlarge time is fettered by the applicant's lame explanation

Holding

No; despite the inadequate explanation, the court retained its discretion and enlarged time, taking into account the applicant's overall diligence.

Reasoning

The applicant filed his notice of appeal within time, served it, promptly paid for and collected the proceedings when ready, filed the appeal on 22nd August 1996 and served the record. Although the explanation for the failure to copy the letter was 'rather lame', these factors showed seriousness, and the court held the explanation did not deprive it of its unfettered discretion to enlarge time.

p. 3

Legal principles established

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  • The exclusion of time under Rule 81(2) is permissible only where the application for proceedings is made in writing and a copy of that letter is sent to the respondent; without such a copy, the period of preparation of proceedings cannot be excluded.

Court orders

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  1. 1.The application is allowed and the orders prayed for in paragraphs 2 and 3 of the notice of motion dated 19th February 1997 are granted (enlargement of time for filing the appeal)
  2. 2.The applicant shall pay the costs of the motion to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 81(1) (including proviso)
  • Court of Appeal RulesRule 81(2)
Jurisdiction invoked
Rule 81(1) and (2) of the Court of Appeal Rules (inherent jurisdiction to enlarge time under the Court's rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "SAMUEL KURIA v MBUGUA KIMANI [1997] KECA 109 (KLR)", Case Analysis (1997). Civil Application (Notice of Motion dated 19th February 1997). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/109/eng@1997-06-05

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