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Court of AppealDismissedCivil Application No. NAI. 69 of 1998· [1998] KECA 184 (KLR)

KAMSONS LIMITED vs NICHOLAS MAKAA [1998] KECA 184 (KLR)

Court of Appeal of Kenya
9 October 1998
JGJ. E. Gicheru
452 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to forgive a company's late appeal filing because the delay was its own fault, showing courts won't rescue careless litigants.

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 an application by Kamsons Limited for extension of time to lodge the record of appeal against the judgment of Khamoni, J. in H.C.C.C. No. 1001 of 1989 delivered on 2nd May 1997. By a consent order dated 12th February 1998, a single judge had extended time for the applicant to lodge its notice of appeal within seven days and the record of appeal within three weeks. The notice of appeal was lodged on 18th February 1998, but the record of appeal presented on 11th March 1998 was rejected by the Deputy Registrar under rule 14(1) of the Court of Appeal Rules for non-compliance with rule 13(2), some documentary exhibits being illegible. The record was eventually lodged on 18th March 1998, one week outside the extended period. Gicheru, J.A. attributed the delay entirely to the applicant's own lapse in presenting an illegible record and held that a party cannot benefit from the Court's discretion under rule 4 arising from its own default. He accordingly declined to exercise the discretion, dismissed the Notice of Motion, and awarded the respondent costs assessed at K.Shs. 3,000/-, payable within 30 days failing which execution to issue. The application is a procedural one; no appeal was heard and no decision below was disturbed.

Key legal issues

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01

Whether extension of time should be granted for lodging a record of appeal lodged one week outside the period extended by a prior consent order

Holding

The application was dismissed because the delay stemmed from the applicant's own lapse in presenting a record of appeal containing illegible documentary exhibits, which was rejected by the Deputy Registrar under rule 14(1) for non-compliance with rule 13(2)

Reasoning

The record of appeal was presented on 11th March 1998 but rejected because some documentary exhibits were not legible, and was only lodged on 18th March 1998, one week outside the extended time fixed by the consent order of 12th February 1998. The judge attributed the delay solely to the applicant's lapse and declined to exercise the rule 4 discretion in favour of a party in default.

p. 2

Legal principles established

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  • A party seeking extension of time under rule 4 cannot benefit from the Court's discretion where the delay is attributable to that party's own default

Court orders

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  1. 1.The applicant's Notice of Motion is dismissed
  2. 2.Costs to the respondent assessed at K.Shs. 3,000/- payable within 30 days from the date of the ruling, failing which execution to issue

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 13(2)
  • Court of Appeal RulesRule 14(1)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1001 of 1989
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single judge, in chambers)

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, "KAMSONS LIMITED vs NICHOLAS MAKAA [1998] KECA 184 (KLR)", Case Analysis (1998). Civil Application No. NAI. 69 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/184/eng@1998-10-09

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