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Court of AppealDismissedCivil Application No. Nai 203 of 1999 (Nyr 15/99)

ITHAGI GITONGA v CONTINENTAL CREDIT FINANCE LTD & ANOTHER [2000] KECA 122 (KLR)

Court of Appeal of Kenya
27 October 2000
ROR. S. C. OmoloASA. B. ShahSBS. E. O. Bosire
670 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to forgive a late appeal notice, ruling courts will not grant extensions that serve no practical purpose.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Omolo, Shah and Bosire, JJ.A) dismissing a reference by Ithagi Gitonga against the decision of a single Judge who had declined to extend time for lodging a notice of appeal. The applicant sought to appeal the ruling of Juma J of 17th May 1999 in H.C.C.C. No. 279 of 1991 refusing to set aside an order dismissing his suit. The last day for lodging the notice of appeal was 31st May 1999. The applicant's advocates handed him the drawn notice at Nyahururu to lodge at Nyeri, but he instead travelled to Ol-Joro-Orok to visit his sister, left the notice there, and only lodged it four days out of time; he then waited a further 17 days before informing his advocates, and the motion itself was not filed until 7th July 1999. The single Judge was unimpressed by this explanation, and the full Court agreed. A further decisive factor was that the letter requesting copies of the proceedings and ruling was not copied to the respondents' advocates, and there was no application for extension of time to lodge the record of appeal; the Court held that an extension of time for the notice would have been futile without such an application, since the Court does not act in vain. Finding no fault in the single Judge's exercise of discretion, the Court dismissed the reference with costs.

Key legal issues

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01

Whether the single Judge rightly refused extension of time to lodge a notice of appeal out of time

Holding

The refusal was proper: the applicant's conduct and explanation did not satisfy the court, and the extension sought would have been futile

Reasoning

The applicant knew he was out of time yet took 17 days to inform his advocates, and the motion was filed only on 7th July 1999. Further, the letter requesting copies of proceedings was not copied to the respondents' advocates, and there was no application for extension of time to lodge the record of appeal. Without such an application, any extension of time for the notice of appeal would have served no purpose, since the Court does not act in vain.

p. 2

Legal principles established

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  • A court will not make an order that would serve no purpose; an extension of time to lodge a notice of appeal will be refused where it would be futile in the absence of an application for extension of time to lodge the record of appeal
  • An appellate court will not interfere with a single Judge's exercise of discretion on extension of time absent a demonstrated fault in that exercise

Court orders

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  1. 1.The reference is dismissed with costs
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 279 of 1991
Jurisdiction invoked
Reference to the full Court against the decision of a single Judge of the Court of Appeal on an application for extension of time to lodge a notice of appeal (Court of Appeal appellate jurisdiction over its own single-Judge decisions)

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, "ITHAGI GITONGA v CONTINENTAL CREDIT FINANCE LTD & ANOTHER [2000] KECA 122 (KLR)", Case Analysis (2000). Civil Application No. Nai 203 of 1999 (Nyr 15/99). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/122/eng@2000-10-27

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