MICHAEL KIRUMBA NJENGA & MUSIARA LTD. vs DAVID FIELDING SMITH [2000] KECA 173 (KLR)
The bottom line
#Kenya's Court of Appeal refused to revive a six-year-stalled appeal, ruling that unexplained delay and lack of candour forfeit the right to more time.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants had sufficiently explained the six-year delay in lodging the intended appeal
- 2.Whether the applicants had been candid with the Court
- 3.Whether the Court should exercise its discretion under rule 4 to extend time for filing a Notice of appeal and Record of appeal
Key legal issues
#Whether the six-year delay in lodging the intended appeal was sufficiently explained to warrant extension of time under rule 4
The delay was not explained or justified; the applicants took no meaningful steps after filing the Notice of appeal, never requested the proceedings, and never obtained a certificate of delay despite a court order requiring them to do so.
The applicants promptly filed a Notice of appeal in March 1994 but did nothing for six years. They failed to comply with Shah J's order of 16 November 1994 to collect the typed proceedings, obtain a certificate of delay and file an appeal. The respondent's advocates had pointed out as early as November 1994 and in a 1996 letter that the proceedings had not been requested. Annual reminders to the court were not a serious effort. The explanation that counsel had not noticed the failure to request proceedings was untenable.
Whether the applicants were candid with the Court
The Court found the applicants were not candid, having claimed to be waiting for proceedings from the court when they had never applied for them.
Counsel for the applicants asserted she could not comply with the order to collect proceedings because she had never asked for them, and that she had not noticed the omission. The Court held this omission could not have been discovered only when the striking-out application was made, since Shah J had flagged it in November 1994 and the respondent's advocates had written about it. The claim of still waiting for proceedings was therefore untenable and amounted to a lack of candour.
Legal principles established
#- An applicant under rule 4 for extension of time must sufficiently explain the delay and be candid with the Court; unexplained inaction, including failure to request proceedings or obtain a certificate of delay, disentitles the applicant to the discretionary relief.
Court orders
#- 1.The application for extension of time to file a Notice of appeal and Record of appeal is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- H.C.C.C No. 3349 of 1991
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (1972) - extension of time
Relief refused
#Extension of time to file a Notice of appeal and Record of appeal out of time
The six-year delay was neither explained nor justified and the applicants were not candid with the Court
Costs
The application is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I see no good reason upon which I can exercise my discretion and extend the time sought for filing the Notice of appeal and lodging the appeal out of time.
They have not sufficiently explained the six years delay in lodging this appeal. I am not satisfied that the delay was justifiable.
The annual remainders to the court cannot be construed as a serious enough effort on their part to obtain the record if they had not obtained the same.
Hence this application is hereby dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MICHAEL KIRUMBA NJENGA & MUSIARA LTD. vs DAVID FIELDING SMITH [2000] KECA 173 (KLR)", Case Analysis (2000). Civil Application (Nairobi) arising from H.C.C.C No. 3349 of 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/173/eng@2000-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.