Joses kilongi v Housing Finance Company (K) Limited & another [2002] KECA 118 (KLR)
The bottom line
#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
#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 a further extension of time to lodge the record of appeal out of time
- 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
#Further extension of time to lodge a record of appeal
Extension granted where the delay was caused by the late availing of certified proceedings and the application was filed promptly upon receipt.
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.
Evidential weight of submissions from the bar
Unsworn statements from the bar cannot displace affidavit evidence.
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.
Absence of prejudice and promptitude as factors in extension
Delay that occasions no prejudice to the respondent, coupled with the applicant's alacrity, favours extension.
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
#- 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
#- 1.The record of appeal be lodged within the next 21 days
- 2.Costs of the application to be costs in the intended appeal
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 (extension of time)
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 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.
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.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.