Samuel Mwehia Gitau v Elijah Kipng’eno Arap Bii & another [2005] KECA 66 (KLR)
The bottom line
#Kenya's Court of Appeal excused a three-month delay in filing a strike-out application because it was arguable and wouldn't prejudice the other side.
What this practically means
#Executive summary
#Key legal issues
#Inordinate delay
A delay of three months in moving for extension of the Rule 80 time limit, which more than doubles the period allowed by the rules, is inordinate.
The time limit expired on 15th January 2005 but the application was not filed until 15th April 2005. The court found the counsel's explanations - pressure of work, office closure over Christmas vacation, and delayed appreciation of the missing primary documents - unconvincing and lacking in cogency, demonstrating a lack of urgency.
Requirement that pleadings be included in the record of appeal
Rule 85(1)(c) mandatorily requires the pleadings to be included in the record of appeal unless a direction for exclusion has been made under Rule 85(3).
The record did not contain the original plaint, defence and counterclaim. No direction under Rule 85(3) excluding them had been sought or made. Arguments that amended pleadings superseded and included the originals had merit but belonged in a Rule 85(3) application; the omission point was not unarguable on a strike-out application.
Exercise of Rule 4 discretion
Despite inordinate delay, the discretion was exercised in favour of the applicant because the application to strike out had a reasonable chance of succeeding, and granting the extension would not prejudice the respondent while a stay of execution remained in place and could hasten final determination of the substantive appeal.
The court balanced the inordinate delay and weak explanations against the arguability of the intended strike-out application and the balance of prejudice. Prolonging the litigation by striking out without an extension could itself prolong matters for years; the tilted balance of prejudice favoured granting the extension.
Legal principles established
#- The proviso to Rule 80 requires an application to strike out a notice of appeal or an appeal to be made within 30 days of service of the record of appeal on the respondent, and an extension of that limit is governed by the Rule 4 discretion weighing length of and reasons for delay, arguability, and prejudice.
Court orders
#- 1.Time for filing the application dated 7th April 2005 seeking to strike out Civil Appeal No. 255 of 2004 is extended to 15th April 2005
- 2.The application filed on 15th April 2005 is deemed to have been filed in time
- 3.Costs of the application to be costs in the appeal
- On appeal from
- High Court
- HCCC No. 882 of 2005 (referred to in the judgment; the applicant was plaintiff before Lady Justice M.G. Mugo)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time discretion)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Mwehia Gitau v Elijah Kipng’eno Arap Bii & another [2005] KECA 66 (KLR)", Case Analysis (2005). Notice of Motion dated 7th April 2005 (in relation to Civil Appeal No. 255 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/66/eng@2005-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.