GEOFFREY ORAO OBURA vs MARTHA KARAMBU KOOME [2000] KECA 286 (KLR)
The bottom line
#Kenya's Court of Appeal excused a filing delay caused by registry mistakes, but the applicant still had to pay the other side's costs.
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 delay of about two months between the striking out of the applicant's appeal on 17th January 2000 and the filing of the application on 2nd March 2000 was inordinate and unreasonable.
- 2.Whether the applicant provided a reasonable explanation for the delay - the High Court Registry's error in extracting the order and the misdelivery of the corrected order to the wrong firm of advocates - warranting an extension of time for filing the notice of appeal and lodging the record of appeal.
Key legal issues
#Whether the delay of about two months in filing the application for extension of time was inordinate and whether it was satisfactorily explained.
The delay was not inordinate in the circumstances. The appeal had been struck out because the High Court Registry extracted the order with a wrong date, and the corrected order was then misdelivered to the wrong firm of advocates; the main delay was therefore not entirely attributable to the applicant's counsel, and a delay of two to three weeks was not inordinate.
The court traced the delay to the High Court registry: the extracted order bore a date different from the order appealed from, obliging counsel to seek a correction; the corrected order, ready on 7th February 2000, was handed to the firm of Martha Koome & Co. Advocates instead of Khamati & Company Advocates, and the conflicting accounts of when it travelled between the two chambers demonstrated registry-caused confusion. Since that confusion, rather than counsel's inactivity, caused the main delay, and only two to three weeks elapsed on any view, the discretion to extend time was exercised in the applicant's favour.
Whether the merits or strength of the intended appeal fall for consideration on a rule 4 extension-of-time application.
No. The court expressly declined to engage with the applicant's ground that he had a strong appeal, confining the application to whether the delay was inordinate and reasonably explained.
The applicant advanced two grounds: an error by the High Court Registry in the record, and his conviction that he had a strong appeal to canvass. The court separated the two at the outset and stated it was not concerned with the ground of a strong appeal. The determination therefore turned solely on the explanation for the delay and the exercise of discretion, not on the prospects of the intended appeal.
Legal principles established
#- On an application for extension of time, the Court does not adjudicate the strength or merits of the intended appeal; the inquiry is confined to the explanation for the delay and the exercise of discretion.
- Delay caused by error or confusion at the court registry - including the misdelivery of a corrected order to the wrong firm of advocates - is not attributable to the inactivity of the applicant's counsel and does not defeat an extension of time.
- A delay of two to three weeks, where a reasonable explanation is given, is not inordinate.
Court orders
#- 1.The time for lodging the Notice of Appeal is extended by 7 days from 7th June 2000.
- 2.The record of appeal is to be lodged within 15 days from the date of filing the Notice of Appeal.
- 3.The respondent is awarded the costs of the application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time)
Relief refused
#Prayer that the costs of the application abide the result of the appeal
Instead of abiding the result of the appeal, the costs of the application were awarded outright to the respondent, who successfully opposed the application.
Determination of the applicant's ground that he has a strong appeal to canvass before the Court
The court confined the rule 4 application to the explanation for the delay and expressly declined to consider the merits of the intended appeal.
Costs
The respondent will have the costs of this application.
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.
allow the application and extend the time for lodging the Notice of appeal by 7 days from today's date and thereafter the record of appeal to be lodged within 15 days from the date of filing the Notice of appeal
In exercising my discretion as to whether or not I should extend time for the applicant, I am of the view that the main delay in the filing of the application cannot be entirely attributed to the inactivity of the applicant's counsel
Nor is a delay of three weeks or two weeks in the circumstances of this matter inordinate
The variation in the story as to when the corrected order left Mrs Koome's chambers to Mr. Khamati's chambers is itself indicative of the confusion that had been caused at the High Court registry
I am not concerned in this application with the second ground
The respondent will have the costs of this application
Issues in the judgment
#The copy of the judgment contains garbled, apparently OCR-corrupted passages; for example the sentence recording that counsel did not deny the delay is illegible.
The respondent is never named in the judgment; it appears only through its counsel's opposition to the application.
The application's own file number is not stated; the only case number appearing in the judgment is that of the struck-out appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "GEOFFREY ORAO OBURA vs MARTHA KARAMBU KOOME [2000] KECA 286 (KLR)", Case Analysis (2000). Civil Appeal No. 275 of 1998 (rule 4 application; the application's own number is not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/286/eng@2000-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.