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Court of AppealDismissedCivil Application No NAI 21 of 2003· [2003] KECA 200 (KLR)

Waweru & Another v Kirori

Court of Appeal
27 June 2003
EOE.O. O’Kubasu
1,223 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a three-year-delayed appeal, confirming that unexplained delay and ignored court rules will cost you your right to appeal.

What this practically means

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Executive summary

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This was a single-judge application under rules 4, 42 and 74 of the Court of Appeal Rules seeking extension of time to file and serve a Notice of Appeal and Record of Appeal from the High Court judgment of Ang’awa J delivered on 2 March 2000 in HCCC No 293 of 1998. The applicants had filed a Notice of Appeal in time on 16 March 2000, but did nothing further until the Deputy Registrar wrote on 3 December 2001 confirming that certified proceedings and judgment were ready for collection; even then they did not collect them, filing the present motion only on 5 February 2003 - a delay of about three years. O’Kubasu JA reaffirmed that although rule 4 confers an unfettered discretion, it must be exercised on reason not caprice and not arbitrarily or oppressively, guided by the settled factors: the length of the delay, the reason for it, the chances of the appeal succeeding, and the prejudice to the respondent. Relying on Samken Limited, Sila Mutiso, and the Privy Council’s decision in Ratman v Cumarasamy (as approved in Grindlays Bank and Trade Bank), the court held that the rules must prima facie be obeyed, that no valid reason had been given for the inordinate and unexplained delay, that the applicants showed no serious intention to appeal, and that the respondent was prejudiced by being kept from the fruits of his judgment. The application was dismissed with costs.

Key legal issues

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01

Whether the delay in filing the Record of Appeal was explained

Holding

Delay of about three years was inordinate and unexplained; even after proceedings were ready for collection the applicants took no step

Reasoning

The court traced the timeline: judgment 2 March 2000, Notice of Appeal 16 March 2000, Deputy Registrar's letter of 3 December 2001 confirming proceedings ready, and the motion filed only on 5 February 2003. The applicants never collected the proceedings, showing no serious intention to appeal, and the delay prejudiced the respondent by keeping him from the fruits of his judgment.

p. 2
02

Whether the unfettered discretion under rule 4 should be exercised in the applicants' favour

Holding

No; discretion must be exercised judicially on the established guidelines and compliance with rules is required

Reasoning

Citing Samken Limited and Sila Mutiso, the court held that although rule 4 confers an unfettered discretion, it must be exercised on reason not caprice, guided by the length and reason for delay, chances of success and prejudice to the respondent. The rules provide a timetable for litigation and must be obeyed.

p. 3

Legal principles established

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  • Rule 4 discretion is wide but must be exercised on reason, not caprice, and not arbitrarily or oppressively
  • The four factors for extension of time: length of delay, reason for delay, chances of appeal succeeding, prejudice to respondent
  • Rules of court must prima facie be obeyed; extension requires material on which the court can exercise its discretion

Court orders

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  1. 1.Application dismissed with costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 42
  • Court of Appeal Rulesrule 74
  • Court of Appeal Rulesrule 81(1)

Cases cited (5)

  • Samken Limited and Another v Mercedes Sanchez Rau Tussel & Another
    Civil Application No NAI 21 of 1990

    Rule 4 discretion is unfettered but must be exercised on reason not caprice, not arbitrarily or oppressively

  • Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 255 of 1997

    Matters considered on extension of time: length of delay, reason, chances of success, prejudice to respondent

  • Ratman v Cumarasamy
    [1964] 3 All ER 933

    Rules of court must prima facie be obeyed; extension requires material on which to exercise discretion

  • Grindlays Bank International (K) Limited v George Barbour
    Civil Application Number NAI 257 of 1995

    Quoted the Ratman v Cumarasamy passage with approval

  • Trade Bank Limited (in Liquidation) v L Z Engineering Construction Limited and Another
    Civil Application No NAI 282 of 1998 (unreported)

    Quoted the Ratman v Cumarasamy passage with approval

On appeal from
High Court at Nairobi
HCCC No 293 of 1998
Jurisdiction invoked
rule 4, rule 42 and rule 74 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Waweru & Another v Kirori", Case Analysis (2003). Civil Application No NAI 21 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/200/eng@2003-06-27

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