Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNotice of Motion dated 8th July 2003 (Civil Application, Court of Appeal)· [2006] KECA 198 (KLR)

Patrick Ng’ang’a Kamau v Isaac Ribiro Kamere [2006] KECA 198 (KLR)

Court of Appeal of Kenya
3 February 2006
1,695 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to extend time to appeal where an 18-month delay was unexplained, warning that bespeaking proceedings alone is not enough.

What this practically means

#

Executive summary

#
This was a single-judge application under rule 4 of the Court of Appeal Rules by Patrick Ng'ang'a Kamau seeking extension of time to file a fresh Notice of Appeal and serve a Record of Appeal following the deemed withdrawal of his original notice under rule 82(a). The intended appeal targeted Kuloba J's decision in HCCC No. 462 of 2001 striking out the applicant's defence. The court found a delay of over one year and two months beyond the statutory period, unexplained by any evidence of diligent pursuit of the High Court record: only a single bespeaking letter of February 2002 was exhibited, and counsel's assertion that several letters had been written was unsupported. Applying the principles in Kenya Commercial Finance Ltd v Pindolia and South Coast Fitness and Sports Centre Ltd v Clarkson Notcutt Ltd, the court held that an applicant must show due diligence and that failure to obtain proceedings was no fault of their own. Two additional difficulties told against the applicant: the application record omitted the plaint and the Kuloba judgment, precluding assessment of the merits; and Aluoch J's subsequent judgment and decree of eviction against the applicant - against which no appeal was filed - meant the application had effectively been overtaken by events. The court also ruled that eviction documents produced from the bar without exhibition to an affidavit were inadmissible. The application was dismissed with costs on 3rd February 2006.

Key legal issues

#
01

Explanation for delay in filing the record of appeal

Holding

Delay of over one year and two months was not excused; the applicant produced no evidence of diligent steps to obtain the record, only statements from the bar.

Reasoning

The applicant bespeaked proceedings in February 2002 but filed the application only in July 2003. The supporting affidavit made no mention of efforts to chase the record; counsel's assertion that letters were written was unsupported as none were exhibited. Following South Coast Fitness and Kenya Commercial Finance Ltd v Pindolia, an applicant must show due diligence and that the failure to obtain proceedings was no fault of their own.

p. 2
02

Sufficiency of the record to assess the merits of the intended appeal

Holding

The applicant's failure to include the plaint and the Kuloba judgment precluded any meaningful assessment of the merits of the intended appeal.

Reasoning

Although the merits of an intended appeal are only of possible relevance on an extension application, the applicant exhibited a draft memorandum and the struck-out defence but omitted the plaint and the Kuloba judgment itself. Without these foundational documents the court could not meaningfully weigh the prospects of the appeal, weighing against extension of time.

p. 3
03

Admissibility of documents produced from the bar

Holding

The Eviction Order and Eviction Warrant were inadmissible for want of exhibition to an affidavit; a party should seek leave to lodge a supplementary affidavit under rule 50(2).

Reasoning

The respondent sought to introduce an Eviction Order and Eviction Warrant not exhibited to the replying affidavit. The court admitted them provisionally but ruled them inadmissible absent the applicant's consent, holding the proper course was an application for leave to file a further supplementary affidavit to which the documents could be exhibited. The court noted the evidence would not have added significant weight in any event.

p. 3
04

Effect of the subsequent Aluoch J judgment and decree

Holding

The court accepted the respondent's submission that the application had effectively been overtaken by events, since no appeal was filed against the Aluoch J judgment and decree, which included eviction.

Reasoning

Aluoch J gave judgment against the applicant on 31st July 2003 with a decree for eviction from LR No. Githunguri/Githunguri/1310, issued 15th August 2003. No Notice of Appeal was filed against that judgment. The respondent argued, and the court accepted, that even a successful appeal against the Kuloba judgment would not undo the final decree. No stay of proceedings had been sought pending the intended appeal.

p. 3

Legal principles established

#
  • A party seeking extension of time must demonstrate due diligence in obtaining proceedings from the High Court registry; written bespeaking letters alone, without reminders or personal follow-up, do not excuse delay.
  • Documents not exhibited to an affidavit are inadmissible in opposition to a motion unless consented to; a party wishing to rely on such documents must seek leave to file a supplementary affidavit.

Court orders

#
  1. 1.The application by Notice of Motion dated 8th July 2003 be and is hereby dismissed with costs

Authorities

#

Legislation

  • Court of Appeal Rulesrule 82(a)
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 50(2)

Cases cited (2)

  • South Coast Fitness and Sports Centre Ltd versus Clarkson Notcutt Ltd
    [2001] 1EA 230 CAK
  • Kenya Commercial Finance Ltd v. Pindolia
    [1997] LLR 2584 (CAK)
On appeal from
High Court of Kenya
HCCC No. 462 of 2001
Jurisdiction invoked
rule 4 of the Court of Appeal Rules (unfettered discretion to extend time)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Patrick Ng’ang’a Kamau v Isaac Ribiro Kamere [2006] KECA 198 (KLR)", Case Analysis (2006). Notice of Motion dated 8th July 2003 (Civil Application, Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/198/eng@2006-02-03

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