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Court of AppealDismissedCivil Application No. Nai. 83 of 1997 (38/97UR)· [1997] KECA 220 (KLR)

Abercrombie & Kent Limited & another v Oloololo Game Ranch Limited [1997] KECA 220 (KLR)

Court of Appeal of Kenya
4 August 1997
532 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to extend appeal time because the applicants provided no evidence—proving that asking the court for more time requires more than bare assertions.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Nairobi by Gicheru, J.A., on the applicants' application for extension of time to lodge a notice and record of appeal. The applicants' original appeal No. 80 of 1996 had been struck out on 10th April 1997 because the notice of appeal was unsigned, contrary to rule 74(6) of the Court of Appeal Rules, rendering the appeal incompetent. Nineteen days later they filed the present application under rule 4. At the resumed hearing on 30th July 1997 there was no appearance for the applicants. Counsel for the respondent, Oloololo Game Ranch Limited, submitted that the intended appeal - directed at the rejection of the applicants' preliminary objection by Khamoni, J. in H.C.C.C. No. 3457 of 1995 concerning an allegedly defective affidavit of Mugesa Ole Kuseyo - would merely delay the prosecution of the suit and raised no serious issue. The court found that the supporting affidavit did not disclose what effect the alleged defect would have on the applicants' case in the superior court, and that there was no rebuttal to the respondent's submission. Holding that the inadequacy of material restrained the exercise of its discretion under rule 4, the court dismissed the application with costs to the respondent. The decision below was not disturbed; the intended appeal was simply not allowed to be lodged out of time.

Key legal issues

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01

Extension of time under rule 4 of the Court of Appeal Rules

Holding

The application was dismissed because the applicants failed to place sufficient material before the court demonstrating that the intended appeal turned on a serious issue rather than serving only to delay the trial suit

Reasoning

The applicants' earlier appeal had been struck out as incompetent because the notice of appeal was unsigned contrary to rule 74(6). On the fresh application, the court found nothing in the supporting affidavit showing the effect of the alleged defect in the affidavit of Mugesa Ole Kuseyo in the superior court, and no rebuttal to the respondent's submission that the intended appeal would merely delay the suit. In the absence of material and rebuttal, the discretion under rule 4 could not be exercised in the applicants' favour.

p. 2
02

Competency of an unsigned notice of appeal

Holding

A notice of appeal unsigned by or on behalf of the applicant, as required by rule 74(6), means there is no valid notice of appeal and the appeal founded on it is incompetent

Reasoning

The court recorded that the applicants' original appeal No. 80 of 1996 had been struck out on 10th April 1997 precisely because the notice of appeal was unsigned, rendering the appeal incompetent. This explains the procedural context of the fresh extension-of-time application and restates the mandatory character of the signature requirement under rule 74(6).

p. 1

Legal principles established

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  • An applicant seeking extension of time under rule 4 must place sufficient material before the court to justify the exercise of the discretion in their favour; inadequacy of material justifies dismissal of the application
  • A notice of appeal must be signed by or on behalf of the applicant as required by rule 74(6); an unsigned notice renders the appeal incompetent

Court orders

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  1. 1.The application for extension of time within which to lodge the notice and the record of appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 74(6)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3457 of 1995
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (in chambers, 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, "Abercrombie & Kent Limited & another v Oloololo Game Ranch Limited [1997] KECA 220 (KLR)", Case Analysis (1997). Civil Application No. Nai. 83 of 1997 (38/97UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/220/eng@1997-08-04

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