Ayub Wangondu Kibii v National Industrial Credit Bank Ltd [2002] KECA 180 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a late appeal because the applicant missed deadlines, waited unnecessarily for paperwork, and offered no good excuse.
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 leave under rule 4 of the Court of Appeal Rules to file and serve a Notice of Appeal and Record of Appeal out of time
- 2.Whether the applicant had offered any sufficient explanation or basis for the Court to exercise its discretion in his favour
Key legal issues
#Whether leave should be granted under rule 4 to file and serve a Notice of Appeal and Record of Appeal out of time
The application was dismissed; the applicant breached rule 74(2) by filing and serving the Notice of Appeal out of time without leave, gave no satisfactory explanation for subsequent delay, and produced no evidence of substantial points of law
The applicant filed the Notice of Appeal on 25th July 2001, out of time and without leave, and served it only on 7th August 2001, again out of time. The letter bespeaking proceedings was not copied to the respondent. After receiving proceedings on 28th November 2001, the applicant waited for the Certificate of Delay unnecessarily, then delayed further before lodging the application on 22nd February 2002. Counsel asserted substantial points of law but did not annex the ruling to substantiate the claim. The Court found no basis to exercise its discretion.
Whether waiting for a Certificate of Delay justifies delay in filing an appeal
No; a certificate of delay is not a primary document under rule 85(1) and its absence does not stop an applicant from filing an appeal
The applicant claimed he could not lodge the appeal until he received a copy of the Certificate of Delay on 25th January 2002. The Court rejected this as a justification, holding that a certificate of delay is not a primary document within rule 85(1), so nothing prevented the applicant from filing his appeal before receiving a copy of it.
Legal principles established
#- A certificate of delay is not a primary document within the meaning of rule 85(1) of the Court of Appeal Rules, so an applicant need not wait for a copy of it before filing an appeal
- An applicant seeking extension of time must demonstrate a basis for the exercise of the Court's discretion, including compliance with the Rules and evidence of substantial points of law, failing which the application will be dismissed
Court orders
#- 1.The application under rule 4 of the Court of Appeal Rules is dismissed
- 2.Costs to the respondent assessed at Shs 5,000/-, to be paid within 14 days, and in default execution to issue
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (Commissioner of Assize)
- Not stated in the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for leave to file and serve Notice of Appeal and Record of Appeal out of time)
Relief refused
#Leave to file and serve a Notice of Appeal and Record of Appeal out of time
The applicant was in flagrant breach of rule 74(2), failed to serve the Notice of Appeal in time, gave no adequate explanation for the delay, and did not annex the ruling to demonstrate substantial points of law; the application was hopeless
Costs
Costs to the respondent assessed at Shs 5,000/-, to be paid within 14 days from the date of the order and in default execution to issue
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.
A certificate of delay is not a primary document within the meaning of rule 85(1) of the Rules so there was nothing to stop the applicant filing his appeal before a copy of it was received by his Advocates.
So in the end there is nothing I can say in favour of the applicant. There is no basis on which I can exercise my discretion in his favour. The application is utterly hopeless. It is for dismissal, and it is hereby dismissed with costs to the respondent assessed at Shs 5,000/ -, to be paid within 14 days from today and in default execution to issue.
In flagrant breach of rule 74(2) of the Rules and without bothering to obtain leave of the Court, the applicant filed a Notice of Appeal on 25th July, 2001.
Issues in the judgment
#The judgment records inconsistent dates for the application for copies of proceedings, noting '26th July, 2000 (sic)' when the decision was given on 28th June 2001, and the affidavit of Mr John Mwangi states receipt of the Certificate of Delay as '25th January, 2001' while the judgment itself states it was received on 25th January, 2002
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ayub Wangondu Kibii v National Industrial Credit Bank Ltd [2002] KECA 180 (KLR)", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/180/eng@2002-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.