FIRST AMERICA BANK OF KENYA LIMITED & ANOTHER v GRANDWAYS VENTURE LIMITED [2000] KECA 377 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that missing appeal deadlines requires sworn evidence explaining the delay — vague claims of 'mistake' will not save a late appeal.
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 single Judge (Owuor, J.A.) had material upon which to exercise her discretion in extending time for filing the notice of appeal and record of appeal
- 2.Whether the applicants discharged the burden of placing necessary and relevant material before the Court to justify an extension of time despite their default
Key legal issues
#Whether an extension of time can be granted without material supporting the exercise of discretion
No; there must be material before the court upon which it can exercise its discretion, and the defaulting party bears the burden of providing it.
Adopting Ratnam v Cumarasamy and Savill v Southend Health Authority, the Court held that rules of court must prima facie be obeyed. A party in breach has no unqualified right to an extension of time. Here there was no affidavit from the advocate alleged to have made the mistake and no explanation for the omission, so the single Judge had no material on which to base her discretion.
Whether the explanation for the default matters to the exercise of discretion
The Court will ordinarily take into account the explanation for the default; if the omission was deliberate rather than accidental, an extension is unlikely.
The Court stated that, as a matter of common sense though not a condition precedent, it would want an explanation of how the appeal became incompetent. If the omission was deliberate, extension would be unlikely. On the facts, there was no material showing inadvertence or accident, so the single Judge could not properly exercise her discretion.
Legal principles established
#- A party in default seeking an extension of time must place necessary and relevant material before the Court to justify the exercise of discretion in its favour; the burden lies on the defaulting party.
- Rules of court must prima facie be obeyed, and extension of time requires some material on which the court can exercise its discretion.
Court orders
#- 1.The reference is allowed with costs
- 2.The order made by the learned single Judge extending time is set aside
- 3.Substituted therefor is an order dismissing with costs the applicants' Notice of Motion dated 20 July, 1999
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 23 of 1999
- Jurisdiction invoked
- Rule 54 of the Court of Appeal Rules (reference to the Court to vary, discharge or reverse the order of a single Judge)
Relief refused
#Extension of time for filing the notice of appeal and record of appeal
There was no material before the single Judge, and no affidavit by the advocate who allegedly made the mistake, upon which the discretion to extend time could be exercised
Costs
The reference is allowed with costs, and the applicants' Notice of Motion dated 20 July, 1999 is dismissed with costs.
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.
The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion
once a party was in default (as the applicants here admittedly were) it was for them to place the necessary and relevant material before the Court to satisfy the Court that despite their default, the discretion should nevertheless be exercised in their favour
this reference is allowed with costs and the order made by the learned single Judge is set aside and substituted by an order dismissing with costs the applicants' Notice of Motion dated 20 July, 1999
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "FIRST AMERICA BANK OF KENYA LIMITED & ANOTHER v GRANDWAYS VENTURE LIMITED [2000] KECA 377 (KLR)", Case Analysis (2000). Civil Application No. NAI. 173 of 1999 (67/99UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/377/eng@2000-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.