Balozi Housing Co-Operative Society Limited v Samuel Waiganjo Thuo t/a Waiganjo & Associates [2001] KECA 255 (KLR)
The bottom line
#Kenya's Court of Appeal punished a party for sneaking an ex parte extension of time behind the other side's back, denying it a priority hearing.
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, having improperly proceeded ex parte in the High Court to obtain an extension of time, should be heard on its Notice of Motion (the preliminary objection raised by the respondent).
- 2.Whether the applicant's ex parte application for extension of time in the High Court ought to have been served on the respondent's counsel.
Key legal issues
#Propriety of the ex parte application for extension of time in the High Court
Where counsel has sought the other side's consent to an extension of time and that consent has been refused, it is improper to obtain the extension ex parte behind counsel's back; the application must be served on the party affected.
The Court observed that the applicant's counsel telephoned the respondent's counsel seeking consent for an extension of time and the request was promptly rejected. Order L rule 2 of the Civil Procedure Rules, which the Court held the applicant had invoked, requires motions to be made on notice, with ex parte orders available only where ordinary proceedings would or might entail irreparable or serious mischief. With both advocates practising in Nairobi and no explanation offered for the delay, proceeding without notice was improper.
Consequence of the improper ex parte application - entitlement to be heard on the Notice of Motion
A party who improperly obtains an ex parte extension of time is undeserving of a hearing on a priority basis; the preliminary objection succeeds and the motion is to be relisted in the normal manner rather than heard out of turn.
The respondent's counsel, Mr. Kembi Gitura, objected that the applicant should not be heard because it had improperly proceeded ex parte in the High Court. The Court agreed, noting there was no explanation for the delay in either seeking the extension or taking out the present motion. It declined to hear the Notice of Motion on a priority basis but did not strike it out or dismiss it finally, directing instead that it be relisted in the normal manner.
The notice requirement and the exceptional ex parte power in Order L rule 2 of the Civil Procedure Rules
No motion shall be made without notice to the parties affected; an ex parte order may be made only if the court is satisfied that delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, and any party affected may move to set it aside.
The Court identified Order L rule 2 of the Civil Procedure Rules as the provision under which the applicant had proceeded in the High Court and quoted it in full. The rule's starting point is notice to all parties affected; the ex parte power is a proviso, conditional on serious mischief from delay, subject to terms as to costs and undertakings, and vulnerable to being set aside by any affected party. The applicant's course of conduct fell outside this narrow gateway.
Legal principles established
#- Motions must ordinarily be made on notice to the parties affected; the ex parte power is exceptional and conditional, available only where proceeding in the ordinary way would or might entail irreparable or serious mischief.
- Where a party's counsel has sought and been refused consent to an extension of time, it is improper to obtain the extension ex parte behind the opposing counsel's back; the application must be served on the party affected.
- A party who improperly obtains an ex parte extension of time is undeserving of a hearing on a priority basis; its application will be relisted in the normal manner rather than heard out of turn.
Court orders
#- 1.The preliminary objection raised on behalf of the respondent was upheld.
- 2.The Court declined to hear the applicant's Notice of Motion.
- 3.The Notice of Motion was to be relisted in the normal manner.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Milimani Commercial Courts at Nairobi
- H.C.C.C. No. 161 of 2000
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Priority hearing of the Notice of Motion under Rule 5(2)(b) of the Court of Appeal Rules
The applicant had improperly obtained an ex parte extension of time behind the respondent's counsel's back after consent was refused, and offered no explanation for the delay in seeking the extension or filing the motion.
Stay of execution pending the intended appeal
The Court declined to hear the motion in which the stay was sought, directing instead that it be relisted in the normal manner; no stay was granted at this stage.
Costs
No order as to costs was made in the ruling.
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.
No motion shall be made without notice to the parties affected thereby.
It was therefore improper for the applicant's counsel to go behind the respondent's counsel's back and make an ex parte application for extension of time.
In our view, that application in the High Court should have been served on the respondent's counsel.
We think that in the circumstances the applicant is undeserving of a hearing on a priority basis, and therefore decline to hear the applicant's Notice of Motion. It should be relisted in the normal manner.
Issues in the judgment
#The supplied text is corrupted at the point where the Court identifies the provision the applicant invoked in the High Court: 'extenOsridoenr oLf. tri.m2.' appears to be a garbled rendering of 'extension of time. Order L rule 2'. The quoted text of the rule also contains stray spaces ('del ay', 'affec ted'). The provision is recoverable from context and from the quoted rule number.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Balozi Housing Co-Operative Society Limited v Samuel Waiganjo Thuo t/a Waiganjo & Associates [2001] KECA 255 (KLR)", Case Analysis (2001). Civil Application No. NAI 332 of 2001 (177/200 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/255/eng@2001-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.