Job Kipsang Suter v Abraham Tenoi Kimala [2001] KECA 231 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a request for extra time to appeal because the documents attached failed to prove the court file was missing.
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 sole ground relied on in support of the application for extension of time under rule 4 - that the court file was missing - was substantiated by the material relied upon
Key legal issues
#Whether the applicant made out a case for extension of time under rule 4 on the ground that the court file was missing
The application failed. The two letters relied upon in support of the ground did not demonstrate that the file was lost, so the ground was unsubstantiated and the application was dismissed.
The applicant sought an extension of time under rule 4 on the single ground that the court file was missing. The court examined the two letters relied upon in support of that ground and found that they did not demonstrate that the file had been lost. Because the evidential basis for the sole ground was absent, the ground was held unsubstantiated and the application could not succeed. The ruling shows that a party invoking the court's extension-of-time discretion must prove the facts relied on, and that mere assertion, even accompanied by correspondence that does not address the ground, is insufficient.
Legal principles established
#- An applicant seeking an extension of time must substantiate the ground relied upon; documents tendered to prove that a court file was missing must actually support that assertion, and an unsubstantiated ground will result in dismissal of the application.
Court orders
#- 1.The application for extension of time under rule 4 is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time)
Relief refused
#Extension of time under rule 4 of the Court of Appeal Rules
The sole ground - that the court file was missing - was not substantiated; the two letters relied upon (RKL5 and RKL6) did not support the assertion that the file was lost
Costs
The judgment records only that the application 'is dismissed with orders'; no express costs order (such as costs of the application) is separately stated.
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 application fails and is dismissed with orders.
Nothing therein supports the view that the file was lost. The ground on which the application is based is not substantiated.
This application is under rule 4 for an extension of time based on the ground that the court file was missing.
Issues in the judgment
#The judgment as supplied does not state the case title, case number, or the names of the parties, and does not identify the decision out of which the intended appeal arose; identification details are missing.
The disposition wording 'dismissed with orders' is unusual and may be a transcription error for 'dismissed with costs'; no express costs order is otherwise discernible.
The judgment refers only to 'rule 4' without naming the rules under which the application was brought; the Court of Appeal Rules are identified from context.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Job Kipsang Suter v Abraham Tenoi Kimala [2001] KECA 231 (KLR)", Case Analysis (2001). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/231/eng@2001-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.