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Court of AppealDismissedCivil Application (Rule 4) arising from Nairobi High Court Civil Case No. 1478 of 1994· [2000] KECA 108 (KLR)

SATISH DAVDRA & ANOTHER v JAYANTILAL ARJAN DAVDRA & 2 OTHERS [2000] KECA 108 (KLR)

Court of Appeal of Kenya

9 March 2000

SBS.E.O. Bosire

627 words in judgment

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The bottom line

The Court of Appeal refused to extend appeal time because the applicants couldn't explain their delay, confirming appellants must obtain certified orders themselves.

What this practically means

Executive summary

This is a single-judge ruling of the Court of Appeal delivered by Bosire, JA, on 9th March 2000, determining an application under rule 4 of the Court of Appeal Rules for extension of time to file and serve a notice of appeal and record of appeal against an order of the High Court in Nairobi Civil Case No. 1478 of 1994 made on 24th July 1996. The applicants, defendants in that suit, had timeously filed a notice of appeal and applied for copies of the proceedings and ruling, but contended that delay by the court in furnishing documents, including a missing court file, prevented timely lodging of the appeal. The court rejected this, noting that the applicants' own counsel prepared the draft certificate of delay showing they had all necessary documents by 3rd November 1997, and that the Christmas vacation excluded from time computation under rule 3(e) gave them further opportunity. The court found the applicants not candid, observed that no explanation was offered for the delay, and noted the unexplained gap between the application's date (5th June 1998) and its filing (16th June 1998). It further held that under the rules of practice it is the intending appellant's duty to draw and cause certification of the decree or order, so any delay in furnishing the certified order was partly or wholly the applicants' own doing. The application was dismissed with costs to the respondents.

Key legal issues

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

Holding

The application was dismissed because the applicants failed to explain the delay and were themselves responsible for the delay in obtaining the certified order

Reasoning

The applicants had timeously filed a notice of appeal, and by their own draft certificate of delay had received all necessary copies of proceedings and the ruling by 3rd November 1997. The Christmas vacation, excluded from computation under rule 3(e), gave further time. They neither lodged the appeal nor promptly brought the application, and did not explain why the application dated 5th June 1998 was not filed until 16th June 1998. The court found them not candid and declined to exercise its discretion.

p. 2

Responsibility for drawing and certifying a decree or order appealed against

Holding

The duty to draw and certify the order lies on the intending appellant, so delay in furnishing a certified order cannot be laid at the court's door

Reasoning

The court held that the applicants' complaint about delay in supplying the certified order was unjustified because the rules of practice place the duty of drawing and procuring certification of the decree or order on the intending appellant. If there was delay, the applicants or their counsel were partly or wholly to blame, and having failed to exonerate themselves they could not invoke the court's discretion.

p. 2

Legal principles established

It is the duty of the party intending to appeal against a decree or order to draw it and cause it to be certified; such a party cannot rely on delay in furnishing a copy of the order where they or their counsel are partly or wholly to blame
A party who has not exonerated themselves from blame for delay cannot rely on that delay to invoke the court's discretion for extension of time

Court orders

1.The applicants' application for extension of time is dismissed
2.Costs of the application awarded to the respondents

Authorities

Legislation

Court of Appeal RulesRule 4
Court of Appeal RulesRule 3(e)

On appeal from: High Court of Kenya; Nairobi High Court Civil Case No. 1478 of 1994
Jurisdiction invoked: Rule 4 of the Court of Appeal Rules (extension of time)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "SATISH DAVDRA & ANOTHER v JAYANTILAL ARJAN DAVDRA & 2 OTHERS [2000] KECA 108 (KLR)", Case Analysis (2000). Civil Application (Rule 4) arising from Nairobi High Court Civil Case No. 1478 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/108/eng@2000-03-09

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