Duncan Gateru v James Ruo Waithaka [2002] KECA 264 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a request to appeal late because the applicant gave the judge almost nothing to justify the delay.
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 material placed before the Court was sufficient to enable it to exercise its discretion under rule 4 of the Court of Appeal Rules to extend time for filing the Notice of Appeal and Record of Appeal out of time
- 2.Whether, applying the settled factors of length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent, the extension of time sought should be granted
Key legal issues
#Whether the material placed before the Court was sufficient to enable it to exercise its discretion under rule 4 of the Court of Appeal Rules to extend time for filing the Notice of Appeal and Record of Appeal out of time
No. The affidavit filed, being the only document filed to support the application, did not provide sufficient material for the Court to determine the settled factors; the material was too scanty, the discretion could not be exercised, and the application was dismissed with costs to the respondent.
The Judge intimated to counsel before the hearing that the material on record was insufficient; counsel argued the application regardless and the submissions did not advance its position. Applying the principle in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, extension of time is discretionary and turns on the length of and reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent. Because the affidavit was the only supporting document and did not furnish material on those factors, the Court could not consider whether to grant the extension and dismissed the application with costs.
What factors guide the Court in deciding whether to grant an extension of time to file an appeal out of time
The decision is essentially discretionary. In general the Court considers first the length of the delay; secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.
The Court adopted as the established principle the statement in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, an unreported decision of this Court, that the decision to extend time is essentially discretionary and that the Court generally takes into account the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent. Those factors frame every rule 4 application, although here the Court could not apply them because the supporting affidavit supplied too little material for their assessment, and the application was dismissed on that ground alone.
Legal principles established
#- An application for extension of time to institute an appeal is essentially discretionary, and the Court generally takes into account the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- An applicant under rule 4 must support the application with sufficient material enabling the Court to assess the settled factors; where the supporting material is too scanty the Court cannot exercise its discretion and the application will be dismissed, with costs.
Court orders
#- 1.The application for extension of time to file the Notice of Appeal and Record of Appeal out of time was dismissed
- 2.Costs of the application were awarded to the respondent
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, referred to in the ruling as 'rule (4) of the Rules of this Court', conferring a discretion to extend time for filing a Notice of Appeal and Record of Appeal out of time
Relief refused
#Extension of time to file the Notice of Appeal and Record of Appeal out of time
The material supporting the application, principally the applicant's affidavit, was too scanty to enable the Court to consider whether to grant the extension
Costs
The application is therefore dismissed with costs to the respondent.
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.
The application is therefore dismissed with costs to the respondent.
It is now well settled that the decision is essentially discretionary. It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are first the length of delay. Secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted, and fourthly, the degree of "prejudice' to the respondent if the application is granted".
To my mind the affidavit file herein, being the only document filed to support the application, does not provide sufficient material upon which I can determine the issue set above.
In the result, I am unable to exercise my unfettered discretion granted to me under rule (4) of the Rules of this Court
Issues in the judgment
#The ruling does not state the case title, case number or the names of the parties; they are referred to only as 'the applicant' and 'the respondent', and the decision intended to be appealed is not identified. The case title, case number and party names in this brief are therefore placeholders, and the applicant has been recorded as the intended appellant.
The citation to the Leo Sila Mutiso authority is printed as 'C. Application No. Nai. 255 of 1997', apparently a typographical rendering of 'Civil Application No. Nai. 255 of 1997'; the citation has been normalised in casesCited.
Mismatched quotation marks around 'prejudice' in the quoted passage from Leo Sila Mutiso (opens with a double quote, closes with an apostrophe), which may affect verbatim quote matching.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duncan Gateru v James Ruo Waithaka [2002] KECA 264 (KLR)", Case Analysis (2002). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/264/eng@2002-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.