H.Z. & Company Limited v Samuel M. Njaria [2000] KECA 388 (KLR)
The bottom line
#Kenya's Court of Appeal gave a company a second chance to appeal after court exhibits went missing, ruling a 19-day delay was not excessive.
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 applicant should be granted an extension of time to file a Notice of Appeal and a Record of Appeal out of time
- 2.Whether the delay of 19 days between the issuance of the certificate of loss on 7 April 2000 and the filing of the Notice of Motion on 26 April 2000 was inordinate and unexplained
- 3.What orders as to costs of the application should issue
Key legal issues
#Whether the 19-day delay between the issuance of the certificate of loss and the filing of the application for extension of time was inordinate
No. Where the certificate of loss was a prerequisite to mounting a competent appeal and issued on 7 April 2000, the interval of 19 days up to the filing of the motion on 26 April 2000 was not inordinate in the circumstances of the case.
The applicant's first appeal, Civil Appeal No. 239 of 1998, was struck out as incompetent because the Record of Appeal omitted exhibits tendered at trial. As those exhibits were lost, a certificate of loss signed by the Deputy Registrar was a prerequisite to a competent appeal; it issued on 7 April 2000. The respondent contended the applicant did not explain the interval up to 26 April 2000, when the motion was filed. The court measured that interval at 19 days and held that, in the circumstances, it was not inordinate.
Whether extension of time to file a Notice of Appeal and Record of Appeal should be granted
Yes. The application was granted in full: time for filing the Notice of Appeal was extended by 7 days from 12 June 2000, and time for filing the Record of Appeal by 14 days from the date of filing the Notice of Appeal.
Having found the delay of 19 days not inordinate, the court exercised its discretion under rule 4 of the Court of Appeal Rules in favour of the applicant, whose earlier appeal had been struck out solely because exhibits lost from the record were missing. The extension was structured in two stages: seven days from the date of the ruling for the Notice of Appeal, and fourteen days from filing that Notice for the Record of Appeal, enabling a competent appeal to be mounted. Costs of the application were awarded to the respondent, assessed at Shs 10,000.
Legal principles established
#- Where exhibits tendered in evidence at the trial are lost, a certificate of loss signed by the Deputy Registrar of the superior court must be obtained before a competent appeal can be mounted.
- A short interval - here 19 days - between the issuance of a certificate of loss and the filing of an application for extension of time does not, in the circumstances of the case, amount to inordinate delay.
Court orders
#- 1.Extension of time for filing the Notice of Appeal by 7 days from 12 June 2000, the date of the ruling
- 2.Extension of time for filing the Record of Appeal by 14 days from the date of filing the Notice of Appeal
- 3.The respondent granted the costs of the application, assessed at Shs 10,000/=, to be paid within 7 days, and in default execution to issue
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 - the discretion of a single Judge of Appeal to extend time for filing a Notice of Appeal and a Record of Appeal
Relief refused
#Dismissal of the extension-of-time application, as urged by the respondent
The court held that the 19-day interval between the issuance of the certificate of loss and the filing of the motion was not, in the circumstances, inordinate delay.
Costs
The respondent will have the costs of this application assessed at Shs 10,000/= to be paid within 7 days and in default execution to issue.
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.
I accordingly grant the application and extend the time for filing a Notice of Appeal by 7 days from today and for filing the Record of Appeal by 14 days from the date of filing the Notice of Appeal.
In the circumstances of this case, I do not regard a delay of 19 days as inordinate.
Since these exhibits were said to have been lost, the applicant was obliged to obtain a certificate of loss signed by the Deputy Registrar of the superior court before it could mount a competent appeal.
The respondent will have the costs of this application assessed at Shs 10,000/= to be paid within 7 days and in default execution to issue.
Issues in the judgment
#The respondent is never named in the judgment; it is referred to only as 'the respondent' and through its counsel Mr. Kowino, so the full case title cannot be reconstructed from this document.
The notice of motion's own file number is not stated; the only number appearing is that of the earlier appeal which was struck out (CA No. 239 of 1998).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "H.Z. & Company Limited v Samuel M. Njaria [2000] KECA 388 (KLR)", Case Analysis (2000). Not stated in judgment (underlying appeal: CA No. 239 of 1998). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/388/eng@2000-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.