Tamil Enterprises Ltd v Official Receiver & Provisional Liquidator of Continental Credit Finance Ltd & another [2005] KECA 69 (KLR)
The bottom line
#Kenya's Court of Appeal refused to excuse a late appeal where one week of delay went unexplained and no draft appeal was shown.
What this practically means
#Executive summary
#Key legal issues
#Whether the seventeen-day delay in filing the extension application was adequately explained
The delay was largely explained by the time taken to obtain the Certificate of Delay, which the applicant had wrongly believed had to be included in the record of appeal, but a residual delay of one week (22nd to 29th October 2004) remained unexplained and weighed against the applicant.
The court computed the sixty-day period under rule 81(1) from the notice of appeal filed on 14th November 2003, expiring on 13th January 2004, then added the 273 days certified for preparing certified copies of the ruling and proceedings, giving 12th October 2004 as the last day to institute the appeal. The application filed on 29th October 2004 was seventeen days late. The Certificate of Delay, issued on 21st October 2004, accounted for most of that period, but the final week from 22nd to 29th October was unexplained.
Whether the intended appeal was meritorious
The applicant failed to demonstrate any merit in the intended appeal: no draft memorandum of appeal was produced and the grounds advanced by counsel were asserted without any elaboration.
Counsel for the applicant could only submit, without further elaboration and without a draft memorandum, that the learned judge exceeded his powers by granting orders not applied for and failed to consider the correct meaning of section 278 of the Companies Act. In the absence of a draft memorandum the court could not assess the prospects of the intended appeal, and this failure weighed decisively in the exercise of discretion against granting the extension.
The status of a Certificate of Delay in the record of appeal and in applications for extension of time
A Certificate of Delay is not required to be part of the record of appeal, but it should be produced in support of an application for extension of time; on the facts, the delays in obtaining it adequately explained most of the applicant's delay.
The court reiterated settled practice that the Certificate of Delay need not be included in the record of appeal. Nonetheless the certificate was relevant documentary evidence of the time taken to supply certified copies of the ruling and proceedings, and the delays in obtaining it constituted, on the particular facts, an adequate explanation for most of the applicant's delay in moving the court. The court therefore endorsed its production in support of extension applications even though it is unnecessary for the record itself.
Legal principles established
#- An appeal to the Court of Appeal must be instituted by lodging the memorandum of appeal and the record of appeal within sixty days of the date when the notice of appeal was lodged.
- A Certificate of Delay is not required to form part of the record of appeal.
- Although a Certificate of Delay need not be included in the record of appeal, it should be produced in support of an application for extension of time.
Court orders
#- 1.The application for extension of time to file the appeal is dismissed with costs
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time), with rule 81(1) governing the period for instituting an appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tamil Enterprises Ltd v Official Receiver & Provisional Liquidator of Continental Credit Finance Ltd & another [2005] KECA 69 (KLR)", Case Analysis (2005). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/69/eng@2005-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.