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Court of AppealDismissedCivil Application No. Nai. 5 of 1999 (as arising from Civil Appeal No. 66 of 1998)· [2000] KECA 116 (KLR)

FREDRICK JONES KINYUA & ANOTHER v WANDA BAIRD [2000] KECA 116 (KLR)

Court of Appeal of Kenya
10 March 2000
EOE.O. O'Kubasu
1,046 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a struck-out appeal because the applicants could not explain why they waited three months to act.

What this practically means

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Executive summary

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This was a Notice of Motion under Rule 4 of the Court of Appeal Rules in which the applicants, Fredrick Jones Kinyua and Peter Kiplagat Koech, sought leave to file a fresh Notice of Appeal and Record of Appeal out of time against the judgment of Pall J delivered on 10 December 1993. Their earlier appeal (Civil Appeal No. 66 of 1998) had been struck out in October 1998 because the copy of the High Court judgment in the record was unsigned and undated. The applicants blamed the Deputy Registrar for supplying the defective copy and asserted that a signed copy of the judgment had since been found in a separate folder. The respondent opposed, contending that the applicants and their counsel had not been diligent and that a delay of some nine months disentitled them to relief. O'Kubasu JA observed that from the striking out of the appeal to the filing of the application in January 1999 there was a delay of about three months for which no explanation was offered, even though the applicants had the signed and dated judgment by October 1998. Applying the principles in Mohamed Ali Aden v The United Nations and Mulembe Farm Ltd v John B. Masika, the court held that an applicant for extension of time must give a satisfactory explanation for the delay and that an attempt to shift blame to the Deputy Registrar demonstrated the absence of a valid explanation. The application was dismissed with costs.

Key legal issues

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Extension of time under Rule 4 - explanation for delay

Holding

The court will not exercise its discretion in favour of an applicant who has not satisfactorily explained the delay in filing the application.

Reasoning

The applicants' appeal was struck out in October 1998 and they had the signed and dated judgment by then, yet they only filed the application in January 1999. They attempted to shift blame to the Deputy Registrar for supplying an unsigned and undated copy of the judgment, but the court found this showed they had no valid explanation. Following Mohamed Ali Aden and Mulembe Farm, unexplained delay disentitles an applicant from the court's indulgence.

p. 3

Legal principles established

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  • An applicant for extension of time must give a satisfactory explanation for the delay; where there is no explanation there can be no indulgence.

Court orders

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  1. 1.The application is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (2)

  • Mohamed Ali Aden and Another v. The United Nations
    Civil Application No. NAI. 145 of 1997 (unreported)
  • Mulembe Farm Ltd. and Another v. John B. Masika and Others
    Civil Application No. NAI. 31 of 1997 (unreported)
On appeal from
High Court of Kenya at Nairobi
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "FREDRICK JONES KINYUA & ANOTHER v WANDA BAIRD [2000] KECA 116 (KLR)", Case Analysis (2000). Civil Application No. Nai. 5 of 1999 (as arising from Civil Appeal No. 66 of 1998). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/116/eng@2000-03-10

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