GERRIT ANDREW WALTERFUNG ENGINEERING LTD & ANOTHER v DAVID OCHIENG [1999] KECA 106 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to file an appeal record because the applicants could not satisfactorily explain their long delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the application for extension of time was explained
The delay was inordinate and unexplained; the proffered explanation about awaiting a Certificate of Delay was contradicted by the applicants' own earlier affidavit, and the postdating of the supporting affidavit was unexplained
The applicants claimed the application could not be filed earlier because counsel awaited a copy of the Certificate of Delay. However, counsel's affidavit in the withdrawn application deponed that he had received a Certificate of Delay on 31st January 1997, dated 2nd February 1996. Either the certificate was in his possession before the earlier application, or the certificate relied on was never exhibited. Additionally, the application dated 10th November 1997 was supported by an affidavit sworn on 19th November 1997 and not filed until 15th December 1997, with no explanation for those lapses.
Whether the discretion under rule 4 should be exercised in favour of the applicants
The discretion was refused; extension of time was denied because of the inordinate and unexplained delay
Rule 4 confers a discretion on a single judge to extend time. The court held that in the absence of a good explanation for inordinate delay, the discretion cannot properly be exercised in the applicant's favour. The record here showed unexplained gaps between the drawing, swearing and filing of the application, and a contradictory account of the Certificate of Delay, justifying refusal of the extension and dismissal with costs.
Legal principles established
#- An applicant under rule 4 seeking extension of time must provide a good and satisfactory explanation for inordinate delay; without such explanation the discretion to extend will not be exercised
Court orders
#- 1.The application for extension of time to lodge a record of appeal is dismissed with costs
- On appeal from
- High Court of Kenya
- High Court Civil Case No. 4000 of 1993
- Jurisdiction invoked
- rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "GERRIT ANDREW WALTERFUNG ENGINEERING LTD & ANOTHER v DAVID OCHIENG [1999] KECA 106 (KLR)", Case Analysis (1999). High Court Civil Case No. 4000 of 1993 (application under rule 4 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/106/eng@1999-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.