SAMUEL KIBE vs BENSON MURIGI NJUGUNA & JOHN KAMUNYU MURIGI [2000] KECA 262 (KLR)
The bottom line
#Kenya's Court of Appeal refused to forgive a 325-day delay because the appellant skipped a simple step: sharing his document request with the other side.
What this practically means
#Executive summary
#Key legal issues
#Whether the proviso to rule 81(1) of the Court of Appeal Rules was available to the applicant.
It was not. Although the applicant applied in writing for certified copies of the proceedings and judgment within the prescribed period, he did not send a copy of that application to the respondents as rule 81(2) requires; the proviso to sub-rule (1) was therefore unavailable and the time spent awaiting the certified copies counted against him.
The applicant, then acting in person, applied on 4th April 1998 for certified copies of the proceedings and judgment of the superior court, following the decree of 26th March 1998. The application was in writing and within the prescribed period, but a copy was not sent to the respondents. Rule 81(2) makes service of that application a condition of invoking the proviso to rule 81(1), which would otherwise exclude the period of preparing the record. Non-compliance meant the whole period from the Notice of Appeal counted toward the 60-day limit for lodging the record.
Whether the delay of 385 days in lodging the record of appeal was sufficiently explained.
No. The explanation of late receipt of certified copies was of no consequence because rule 81(2) had not been complied with; of the 385 days elapsed since the Notice of Appeal, 325 days beyond the allowed 60 remained unexplained.
The supporting affidavits attributed the delay to the late receipt of the certified copies of the proceedings, judgment and decree from the superior court. The court held that explanation to be of no consequence since rule 81(2) had not been complied with. From the Notice of Appeal lodged on 6th April 1998 the applicant had 60 days to lodge the record; the further 325 days were unexplained and were characterised as no mean delay, which justified refusing the extension.
Whether the discretion under rule 4 of the Court of Appeal Rules should be exercised in the applicant's favour.
It should not. In the absence of compliance with rule 81(2) and of any explanation for the 325-day delay, the discretion could not be exercised in the applicant's favour and the application was dismissed with costs.
The court measured the delay from the Notice of Appeal lodged on 6th April 1998 to the present application of 26th April 1999, a period of 385 days. Because rule 81(2) had not been complied with, the proviso to rule 81(1) could not exclude the time spent obtaining certified copies, so the proffered explanation was of no consequence. With 325 days of the delay unexplained, the judge in chambers found he was unable to exercise his discretion under rule 4 in the applicant's favour and dismissed the application with costs to the respondents.
Legal principles established
#- An intending appellant who applies for certified copies of the proceedings but does not send a copy of that application to the respondents cannot invoke the proviso to rule 81(1) of the Court of Appeal Rules; the time taken to obtain the certified copies therefore counts toward the prescribed period for lodging the record of appeal.
- Late receipt of certified copies of the proceedings is no explanation for delay in lodging the record of appeal where the service requirement of rule 81(2) was not complied with; an unexplained delay beyond the prescribed 60-day period will defeat an application for extension of time under rule 4.
Court orders
#- 1.The applicant's application for extension of time within which to lodge and serve the record of appeal is dismissed.
- 2.Costs of the application are awarded to the respondents.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.A. No. 22 of 1996
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretion to extend time)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- In the Matter of Review of Ruling dated 19th March 2007 (Applicant v Respondent)[2007] KEHC 205 (KLR)7 Dec 2007
Cite this brief
#Cite this brief
Caselaw, "SAMUEL KIBE vs BENSON MURIGI NJUGUNA & JOHN KAMUNYU MURIGI [2000] KECA 262 (KLR)", Case Analysis (2000). Civil Application NAI. 96 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/262/eng@2000-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.