Cosmas Kyalo Muthembwa v Eunice M. Kyalo [2001] KECA 300 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a litigant whose appeal had been struck out to start afresh, ruling that a 24-day delay was not fatal.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant's explanation for the original non-compliance with rule 81(2) was genuine.
The court declined to determine the genuineness of the explanation for the original non-compliance, holding that the prior default had already been sufficiently punished by the striking out of the appeal, which compelled the applicant to start afresh; the disputed material therefore did not affect the decision.
The respondent, through Mr. Ranji, urged that the plea of ignorance was false because the notice of appeal showed the applicant was still represented by his former counsel, and the letter of 2nd July 1999 was never availed to the court. Owuor JA sidestepped the dispute: whatever mistakes the applicant made had already attracted the drastic sanction of striking out, forcing him to begin the process anew. The credibility of the original explanation was therefore immaterial to the fresh extension application.
The period to be assessed in a fresh extension application made after a previous appeal has been struck out.
Only the period between the striking out of the previous appeal and the filing of the fresh motion is considered; earlier periods of non-compliance fall away. Here the relevant period was the 24 days between 27th June 2000 and 21st July 2000.
Adopting Omolo JA's statement in George William Engineering Company Ltd v Leonard Kimeu Kimathi, with which the court expressly agreed, the inquiry is confined to the interval between the striking out of the earlier appeal and the filing of the new motion. The respondent computed that interval as 24 days and attacked it as unexplained; the court treated that interval, not the original rule 81(2) default, as the delay requiring explanation.
Whether a 24-day delay, with the explanation that counsel was still taking instructions, amounted to inordinate delay.
No. The court found the explanation genuine and held that 24 days did not amount to inordinate delay, and therefore exercised its unfettered discretion under rule 4 in the applicant's favour.
The respondent asserted that no credible explanation had been given and that the applicant failed to move with speed and alacrity after the striking out. The supporting affidavit deponed that counsel was still taking instructions from the applicant. On that material the court was unable to find the explanation lacked merit or was not genuine, and concluded the 24-day period did not constitute inordinate delay barring the exercise of discretion.
Legal principles established
#- Where an appeal has been struck out for non-compliance with the Court of Appeal Rules, the prior default is treated as sufficiently punished by the striking out; the applicant may start the appeal process afresh, and the earlier non-compliance does not bar a fresh extension application.
- In a fresh application for extension of time made after a previous appeal has been struck out, the only period to be considered in assessing delay is the period between the striking out of the previous appeal and the filing of the new motion.
- A short period of delay accompanied by a genuine explanation does not amount to inordinate delay and will not defeat an extension of time; the discretion under rule 4 is unfettered.
Court orders
#- 1.Time extended for lodging the notice of appeal against the judgment of Hayanga J dated 2nd July 1999 - the notice of appeal to be filed and served within 7 days from 6th April 2001.
- 2.Time extended for filing the memorandum of appeal and record of appeal - to be filed within 14 days from the date of filing the notice of appeal.
- 3.Costs of the application awarded to the respondent.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time), exercised by a single Judge of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cosmas Kyalo Muthembwa v Eunice M. Kyalo [2001] KECA 300 (KLR)", Case Analysis (2001). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/300/eng@2001-04-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.