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Court of AppealAllowedCivil Application No. NAI. 246 of 2002

Cempack Limited v Kenya Commercial Bank Limited & another [2002] KECA 247 (KLR)

Court of Appeal
29 August 2002
RKR.O. KwachASA.B. ShahMKM. Keiwua
244 words in judgment
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave Cempack Limited 30 more days to pay KCB KShs 100 million and US$57,313, citing tough economic conditions.

What this practically means

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Executive summary

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This is a brief procedural ruling of the Court of Appeal at Nairobi (Kwach, Shah and Keiwua, JJ.A.) delivered on 29 August 2002 in Civil Application No. NAI. 246 of 2002. Cempack Limited, the applicant and intended appellant, sought variation and/or extension of the ruling delivered by the same bench on 2 August 2002 in Civil Application No. 171 of 2002. That earlier ruling - which arose from a ruling by Osiemo J delivered on 19 June 2002 in H.C.C.C. No. 569 of 2002 at the Milimani Commercial Courts - had fixed payment terms of KShs 100,000,000 together with instalments of US$57,313. Kenya Commercial Bank Limited and Kieran Day were the respondents. The ruling records no submissions and cites no authority. The court held that 'in view of all the circumstances appertenant to this matter and in view of the state of the economy' the time given in the 2 August 2002 ruling would be extended by a further 30 days, both for the lump sum and for the instalments. The varied schedule required Shs 100,000,000 to be paid on or before 2 October 2002 and the first instalment of US$57,313 on or before 1 November 2002. Costs of the application were made costs in the intended appeal. The application therefore succeeded and the court varied its own prior order. The ruling contains no legal analysis, no citation of statute or case law, and lays down no new principle; its binding effect is confined to the varied payment dates binding the parties. It is an exercise of judicial discretion on extension of time, useful chiefly as an illustration of the court's willingness to adjust its own payment directions where economic circumstances justify it.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether to vary the ruling of 2 August 2002 by extending the time fixed therein for payment of the sum of KShs 100,000,000 and the instalments of US$57,313.
  2. 2.What order to make as to the costs of the application.

Key legal issues

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01

Whether the Court should vary its ruling of 2 August 2002 by extending the time for payment of KShs 100,000,000 and the instalments of US$57,313.

Holding

Yes. The time was extended by a further 30 days for both the lump sum and the instalments: Shs.100,000,000/= payable on or before 2nd October, 2002, and the first instalment of US$57,313/= on or before 1st November, 2002, with costs of the application in the intended appeal.

Reasoning

The court gave no reasons beyond referring to 'all the circumstances appertenant to this matter' and 'the state of the economy'. The ruling is a bare discretionary decision: it records no submissions, cites no authority and no statute, and states no principle. Its effect is confined to resetting, by a further 30 days, the payment dates the same bench had fixed in its ruling of 2 August 2002 in Civil Application No. 171 of 2002, which itself arose from Osiemo J's ruling of 19 June 2002 in H.C.C.C. No. 569 of 2002.

p. 1

Legal principles established

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  • The binding effect of this ruling is the varied payment schedule itself: the time fixed by the Court's ruling of 2 August 2002 was extended by a further 30 days, so that KShs 100,000,000 fell due on or before 2 October 2002 and the first instalment of US$57,313 on or before 1 November 2002. Beyond confirming that the Court may extend time given in its own rulings where the circumstances, including the state of the economy, justify it, the ruling lays down no general principle of law.

Court orders

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  1. 1.Time given in the ruling of 2 August 2002 extended by a further 30 days, both for payment of the sum of K.Shs.100,000,000/= and the instalments.
  2. 2.Payment of Shs.100,000,000/= on or before 2nd October, 2002.
  3. 3.Payment of the first instalment of US$57,313/= on or before 1st November, 2002.
  4. 4.Costs of the application to be in the intended appeal.

The bench

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

RK
majority
AS
majority
MK
majority
On appeal from
Court of Appeal at Nairobi (the court's own prior ruling)
Civil Application No. 171 of 2002
Jurisdiction invoked
Not stated in the ruling. The application is expressly one 'for variation and or extension of the Ruling of the Court of Appeal at Nairobi... delivered on the 2nd August, 2002 in Nairobi, Court of Appeal Civil Application No. 171 of 2002'; the court cites no constitutional or statutory provision, exercising its power to extend time it had fixed in its own earlier order.

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.

In view of all the circumstances appertenant to this matter and in view of the state of the economy we extend the time given in our ruling on 2nd day of August 2002 by further 30 days, both for payment of the sum of K.Shs.100,000,000/= and the instalments
p. 1Extension of time - variation of the Court's own prior ruling
so that dates of payment are as follows:(i)Shs.100,000,000/= on or before 2nd October, 2002. (ii)the first instalment of US$57,313/= on or before 1st November, 2002.
p. 1Final orders - varied payment schedule
Costs of this application will be in the intended appeal.
p. 1Costs

Issues in the judgment

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minor

The third judge's name appears inconsistently within the judgment: the coram reads 'KEIWUA', the application heading refers to 'Hon. Mr. Justice Ole Keiwua', and the signature block reads 'M. KEIWUA' - the same judge rendered three different ways.

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, "Cempack Limited v Kenya Commercial Bank Limited & another [2002] KECA 247 (KLR)", Case Analysis (2002). Civil Application No. NAI. 246 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/247/eng@2002-08-29

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