Benson Ngugi Muiruri v Kenya National Capital Corporation Ltd [2000] KECA 221 (KLR)

The applicant sought to introduce documents omitted from the record already filed. Counsel indicated that the documents were exhibits produced in the superior court. The judge reasoned that if that was their character, the court had no jurisdiction to permit their introduction through a supplementary record of appeal. Since the nature of the documents had not otherwise been explained, the court could not satisfy itself that they were proper material for a supplementary record, and prayer 2 was refused and dismissed.

The applicant had thirty days from 5th April 2000 to file a fresh record, expiring around 4th May 2000, but lodged the record on 10th May 2000, a delay of under ten days. His explanation was illness, on which he spent Shs.10,000 intended for lodging the appeal; no hospital documents were attached, only a cashsale receipt for medication. The judge weighed the short delay, the fact that the appeal had already been filed, and the hardship refusal would cause, and exercised his discretion in the applicant's favour. Non-payment of the Shs.3,000 costs ordered on 5th April 2000 was mitigated because that order reserved execution to the respondent.

The court declined to adjudicate whether the notice of appeal had been served on the respondent. It held that service of the notice of appeal was a matter which could only be determined at a different forum, and that if the respondent had not been served, its advocates would know what steps to take. The extension orders therefore left the question of service open, with the time for serving the record extended only to the date of actual service if service had already occurred.

The applicant had not paid the Shs.3,000 costs ordered on 5th April 2000 within fourteen days. The judge noted this non-payment but held it mitigated because the earlier order specifically provided that if the money was not paid within the stipulated time, the respondent was at liberty to levy execution. Consequently, that earlier order could not form part of the present orders; the respondent's remedy for its non-payment lay in execution under the earlier order, not in disturbing the extension now granted.