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Court of AppealDismissedCivil Application (Extension of Time) — filed 30 July 1999

THE REGISTERED TRUSTEES OF MOMBASA v MUSHIN ABDULKARIM ALI [2000] KECA 381 (KLR)

Court of Appeal of Kenya
17 March 2000
ALA.A. Lakha
792 words in judgment
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The bottom line

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The Court of Appeal refused to extend time to appeal because the applicant never first obtained the required leave to appeal.

What this practically means

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Executive summary

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This is a single-Judge ruling of the Court of Appeal (Lakha, JA) delivered at Nairobi on 17 March 2000 on an application filed on 30 July 1999 seeking extension of time to lodge and serve a notice of appeal, and the record of appeal, against a High Court decision of Ang'awa, LJ delivered on 15 October 1997. Before the hearing, the applicant's advocate filed without leave a proposed amended notice of motion, prompted by the Court's decision in Suryakant Bhagwanji Raja Shah vs. Aperit Investment S.A., which had criticised orders not drawn in the manner of a decree. The Court declined to permit the amendment because a later decision of 3 December 1999 in Civil Appeal No. 140 of 1996 had held the Shah decision per incuriam, rendering the amendment unnecessary; the application was therefore argued on the original notice of motion. On the merits, the applicant argued there was no delay (the appeal having been struck out on 29 July 1999 and the application filed the next day) and that the striking out resulted from counsel's inadvertence. The Court accepted that, ordinarily, an extension would readily be granted on such facts. However, the respondent's objection prevailed: the order of 15 October 1997 was appealable only with leave, no leave had been sought or obtained, and the time for obtaining it had lapsed. Since no appeal could lie without leave, no extension could be granted. The Court declined to exercise its discretion in the applicant's favour and dismissed the application with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be allowed to file an amended notice of motion without leave
  2. 2.Whether time should be extended to lodge and serve the notice of appeal and the record of appeal
  3. 3.Whether the order of 15 October 1997 is appealable without leave

Key legal issues

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01

Whether extension of time can be granted where the underlying order is appealable only with leave and no leave exists

Holding

The objection succeeds; the Court declines to exercise its discretion in favour of the applicant and dismisses the application.

Reasoning

The Court examined the order of 15 October 1997 and found it appealable only with leave. No leave had been sought or obtained, and the time for obtaining leave had lapsed. Since no appeal could lie without leave, there was nothing in respect of which extension of time could be granted. The applicant's counsel proffered no answer to this objection, and the Court declined to exercise its discretion in the applicant's favour.

p. 2
02

Whether an amendment to the notice of motion was necessary in light of the Shah decision

Holding

The amendment was unnecessary because a later decision of the Court had held the Shah decision per incuriam.

Reasoning

The proposed amendment was prompted solely by the decision in Suryakant Bhagwanji Raja Shah vs. Aperit Investment S.A., which required orders to be drawn like decrees setting out particulars of the claim or relief sought. However, on 3 December 1999, in Civil Appeal No. 140 of 1996, the Court held that the Shah decision was per incuriam. The amendment therefore served no purpose and was refused.

p. 2

Legal principles established

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  • Where an order is appealable only with leave and no leave has been obtained (and time for obtaining it has lapsed), the Court cannot grant an extension of time because no appeal lies.

Court orders

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  1. 1.The proposed amendment was refused as unnecessary; the application was dealt with on the original notice of motion of 30 July 1999
  2. 2.The application for extension of time was dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AL
majority

Wrote the judgment

On appeal from
High Court of Kenya
Jurisdiction invoked
Inherent discretion of the Court of Appeal to extend time under the Appellate Jurisdiction regime / Civil Procedure Rules (application before a single Judge of the Court of Appeal)

Relief refused

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Extension of time to lodge and serve the notice of appeal and record of appeal

The order sought to be appealed is appealable only with leave, and no leave had been sought or obtained; without leave no appeal lies, so no extension can be granted

p. 2

Leave to file an amended notice of motion

The amendment was prompted by the Shah case, which had since been held per incuriam by a later decision of the Court, so the amendment was unnecessary

p. 2

Costs

The application was dismissed with costs to the respondent.

Quotable passages

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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 have carefully considered the Order against which it is intended to appeal and am satisfied that no appeal therefrom lies as of right but only with leave. No leave has been sought or obtained.
p. 2Appealability with leave — prerequisite to extension of time
In the result, the application fails and it is dismissed with costs.
p. 2Final orders — dismissal with costs
We will no longer condone this kind of infringement of the provisions of the Civil Procedure Rules where a primary document is involved.
p. 2Shah case — formal requirements of orders (later held per incuriam)

Issues in the judgment

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minor

The judgment does not state the case title or case number of the application itself; the parties are referred to only as 'the applicant' and 'the respondent'.

minor

The decision in Civil Appeal No. 140 of 1996, which held the Shah case per incuriam, is cited without any party name.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "THE REGISTERED TRUSTEES OF MOMBASA v MUSHIN ABDULKARIM ALI [2000] KECA 381 (KLR)", Case Analysis (2000). Civil Application (Extension of Time) — filed 30 July 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/381/eng@2000-03-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.