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Court of AppealDismissedCivil Application (Notice of Motion) arising from H.C.C.C. No. 2167 of 1988

Development Finance of Kenya Ltd v Kabansora Limited & another [1997] KECA 305 (KLR)

Court of Appeal of Kenya
30 January 1997
852 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time for a late appeal, stressing that delay defeats justice and extensions must be fair to both sides.

What this practically means

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Executive summary

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The applicant, Development Finance Company of Kenya Ltd, sought leave under rule 4 of the Court of Appeal Rules to file a fresh notice of appeal and record of appeal out of time against a ruling of Akiwumi J dated 22 February 1990 in H.C.C.C. No. 2167 of 1988. The background was an execution dispute: Kibansora Ltd had obtained judgment against Peter Kuria Waweru and attached property the applicant claimed under a debenture. The applicant gave an objection notice under Order 21 rule 53 but failed to institute proceedings to establish its claim within the prescribed ten days, so the objection was deemed waived under rule 58(1) and execution was ordered to proceed on 6 December 1989. The applicant's application for review under Order 44 rule 1 failed because, the court reaffirmed, 'sufficient reason' must be analogous to the grounds of newly discovered matter or error apparent on the face of the record; an explanation for delay could only support setting aside the order, not review. A prior appeal (Civil Appeal No. 2 of 1995) was struck out as incompetent for want of a certified copy of the order appealed against. Pall JA held the rule 4 discretion, though unfettered, is judicial and must be just to both sides. The intended appeal was not arguable, the judgment was over eight years old, and the applicant had no good excuse for its earlier incompetence. The notice of motion was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court should extend time for the applicant to file a fresh notice of appeal and record of appeal out of time
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether it would be just to both parties to grant the extension

Key legal issues

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01

Whether 'sufficient reason' under Order 44 r 1 for review is an independent ground

Holding

No - it must be analogous to the first two grounds (new and important matter, or error apparent on the face of the record)

Reasoning

The applicant conceded the first two review grounds were unavailable and relied on an explanation for its delay in filing objection proceedings. The court held such an explanation, even if sufficient, could only ground an application to set aside the order of 6.12.1989, not a review. The learned judge of the High Court was therefore right to reject the review application.

p. 2
02

Whether extension of time should be granted under rule 4

Holding

Refused - the discretion, though unfettered, is judicial and must be exercised justly to both parties; the intended appeal was frivolous and the delay inexcusable

Reasoning

The intended appeal was not arguable since the applicant could not bring itself within Order 44 r 1. The respondent had waited over eight years for the fruits of its judgment. The applicant also failed to explain filing an incompetent appeal without the certified order required by rule 85(1)(h). Justice requires finality in litigation.

p. 2

Legal principles established

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  • Rule 4 confers an unfettered but judicial discretion to extend time, exercisable only where it is just to both sides
  • A 'sufficient reason' for review under Order 44 r 1 must be analogous to the grounds of discovery of new matter or error on the face of the record, and cannot be an independent ground
  • Contentious litigation should be concluded promptly; delay defeats justice

Court orders

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  1. 1.The notice of motion seeking extension of time to file a fresh notice of appeal and record of appeal is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya
H.C.C.C. No. 2167 of 1988
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

Relief refused

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Extension of time to file a fresh notice of appeal and record of appeal

The intended appeal was not arguable, the applicant could not bring itself within Order 44 r 1 for review, judgment was over 8 years old, and the applicant had no good excuse for filing an incompetent appeal lacking a certified order

p. 2

Costs

The notice of motion was dismissed with costs to the respondent (the Plaintiff).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This court has an unfettered discretion under rule 4 of the Court of Appeal Rules (the Rules) to extend the time limited by the Rules for the doing of any act authorised or required by the Rules.
p. 2Rule 4 discretion to extend time
It, however is a judicial discretion and therefore the orders sought by the applicant can be granted only if this court is satisfied that in the circumstances of this case it would be just to do so and it has to be just to both sides not only to the applicant but to the respondent as well.
p. 2Justice to both parties as the governing test
However it is by now a law settled beyond doubt that the sufficient reason has to be analogous to the first mentioned two grounds.
p. 2Scope of 'sufficient reason' for review under Order 44 r 1
For these reasons I refuse to exercise my discretion in favour of the applicant and dismiss the notice of motion with costs.
p. 2Final orders - dismissal of the application

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, "Development Finance of Kenya Ltd v Kabansora Limited & another [1997] KECA 305 (KLR)", Case Analysis (1997). Civil Application (Notice of Motion) arising from H.C.C.C. No. 2167 of 1988. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/305/eng@1997-01-30

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