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Court of AppealAllowedCivil Application No. Nai. 127 of 2001 (further application)

Joses kilongi v Housing Finance Company (K) Limited & another [2002] KECA 118 (KLR)

Court of Appeal of Kenya
28 June 2002
380 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave a bank customer extra time to appeal because court documents arrived late and the bank couldn't prove otherwise.

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 at Nairobi by A.B. Shah, JA, on a further application under rule 4 of the Court of Appeal Rules for extension of time. The applicant, Joses Kilongi, had earlier obtained leave from O'Kubasu, JA (Civil Application No. Nai. 127 of 2001) to lodge his notice of appeal within seven days of 28th September 2001 and the record of appeal within 21 days thereafter. He lodged the notice in time but could not lodge the record because the copy of proceedings was only availed to his advocate on 27th November 2001; he filed the present application within three days of receipt. Counsel for the first respondent objected, asserting from the bar that the proceedings had been received earlier, but filed no affidavit to controvert the applicant's sworn evidence; the court declined to accept the bar submission. The court also found no prejudice to the first respondent and noted the applicant's advocate had acted with alacrity. The second respondent, an auction purchaser, indicated he no longer had interest in the proceedings. The application was allowed and the record of appeal was ordered to be lodged within 21 days, with costs of the application to be costs in the intended appeal. The ruling is a discretionary interlocutory decision on extension of time, not a binding appellate determination on the merits.

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 granted a further extension of time to lodge the record of appeal out of time
  2. 2.Whether the assertion from the bar that the copy of proceedings was received earlier should be accepted in the absence of a replying affidavit

Key legal issues

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01

Further extension of time to lodge a record of appeal

Holding

Extension granted where the delay was caused by the late availing of certified proceedings and the application was filed promptly upon receipt.

Reasoning

The single Judge had earlier granted leave with a 21-day period for lodging the record. The applicant lodged the notice of appeal in time but could not lodge the record because the copy of proceedings was only availed on 27th November 2001. The further application was filed within three days of receipt, showing diligence, and no prejudice was shown by the respondent.

p. 1
02

Evidential weight of submissions from the bar

Holding

Unsworn statements from the bar cannot displace affidavit evidence.

Reasoning

Counsel for the first respondent asserted from the bar that the proceedings had been received earlier than deponed. The court held that without a replying affidavit contradicting the applicant's advocate's sworn account, the assertion could not be accepted.

p. 2
03

Absence of prejudice and promptitude as factors in extension

Holding

Delay that occasions no prejudice to the respondent, coupled with the applicant's alacrity, favours extension.

Reasoning

The court noted the first respondent suffered no prejudice from the delay and that the applicant's advocate had moved the court with alacrity, which the court would not punish.

Legal principles established

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  • An assertion made from the bar, unsupported by a replying affidavit, cannot be accepted to controvert sworn evidence on when proceedings were availed.

Court orders

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  1. 1.The record of appeal be lodged within the next 21 days
  2. 2.Costs of the application to be costs in the intended appeal

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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 allow this application and order that the record of appeal be lodged within the next 21 days. Costs of this application will be costs in the intended appeal.
p. 2Final orders - extension granted
There is no affidavit filed to controvert what Mrs. Muriungi has deponed to. In the absence of such an affidavit I am unable to accept Mr. Makori's assertion from the bar.
p. 2Submissions from the bar versus affidavit evidence
In any event the delay has not occasioned any prejudice to the first respondent. Mrs. Muriuki has moved the court with alacrity and I cannot punish her for that.
No prejudice and promptitude

Issues in the judgment

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minor

The judgment text is garbled in places, including the case number and the advocate's name, which appears as both 'Mrs. Muriungi' and 'Mrs. Muriuki'.

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, "Joses kilongi v Housing Finance Company (K) Limited & another [2002] KECA 118 (KLR)", Case Analysis (2002). Civil Application No. Nai. 127 of 2001 (further application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/118/eng@2002-06-28

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