Benjamin Mutuku Kaleli v Bomu Headlam & 5 others [2005] KECA 51 (KLR)
The bottom line
#Kenya's Court of Appeal allowed an appeal filed 18 months late, because the case raised genuine issues despite weak excuses for the delay.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of affidavits blending knowledge, information and belief
Paragraphs using the omnibus 'knowledge, information and belief' formula without identifying sources are ineffective, but particular paragraphs identifying sources remain admissible, as do exhibits which speak for themselves.
The court followed Assanand & Sons and Noormohamed in holding that a deponent must distinguish matters within his own knowledge and, for information and belief, show sources and grounds. It then combed the Shah and Nyaberi affidavits paragraph by paragraph, admitting only those paragraphs identifying a source or producing documents speaking for themselves, and rejecting allegations of fact (e.g. non-payment and delivery of machines) where the deponent failed to identify which of several possible sources applied.
Adequacy of explanation for inordinate delay
The reasons advanced for the approximately 18-month delay were totally inadequate; nonetheless, given the arguability of the intended appeal and absence of special prejudice, the discretion was exercised in favour of extension.
The court examined each proffered reason: delayed instruction of counsel, retention of files by a former advocate (with no evidence of any attempt to obtain a court order for their release), belief that a review would succeed, and delay in production of proceedings (with no evidence of chasing the record and no Certificate of Delay). A Notice of Appeal being 'a relatively simple document to draft', the delay went unexplained. But extension was still granted because the appeal was arguable and no uncompensable prejudice was shown.
Test for arguability of the intended appeal on an extension application
The applicant need only show a reasonable probability that the appeal is arguable, not that it will succeed; the court found the superior court's implied 'working order' term arguably faulty given the 'As is' clause.
Despite the defective affidavits and ungrammatical grounds, counsel's submissions revealed that the judge's key finding on machines being in working order had no basis in the written contract, which described the machines merely as 'used' and contained an express 'NO GUARANTEE... (As is)' clause. The court stressed it was not deciding the appeal but only whether it was arguable, and concluded it was.
Legal principles established
#- An affidavit ending with a blanket statement that its contents are true to the best of the deponent's knowledge, information and belief, without distinguishing matters within the deponent's knowledge or identifying sources of information and belief, is defective and the court should not act upon it.
- In interlocutory proceedings, statements of information and belief are admissible if the deponent identifies the source and grounds of that information and belief in the particular paragraph.
- A litigant cannot rely on the automatic exclusion of time under the proviso to rule 81(1) without a Certificate of Delay; the court may still, in its discretion, take such delay into account.
Court orders
#- 1.The applicant to file and serve a fresh notice of appeal within seven days of the date of the ruling
- 2.The applicant to file and serve its record of appeal within fourteen days from the date the notice of appeal is lodged in Court
- 3.The costs of the application to be in the intended appeal
- 4.If the applicant fails to comply with conditions (1) and (2) within the stated periods, the orders automatically stand vacated and the application stands dismissed with costs, no further order of the court being necessary
- On appeal from
- High Court of Kenya
- HCCC No. 1107 of 1990
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Mutuku Kaleli v Bomu Headlam & 5 others [2005] KECA 51 (KLR)", Case Analysis (2005). Civil Application (Rule 4) arising from HCCC No. 1107 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/51/eng@2005-09-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.