Patrick Ng’ang’a Kamau v Isaac Ribiro Kamere [2006] KECA 198 (KLR)
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
#Key legal issues
#Explanation for delay in filing the record of appeal
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.
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.
Sufficiency of the record to assess the merits of the intended appeal
The applicant's failure to include the plaint and the Kuloba judgment precluded any meaningful assessment of the merits of the intended appeal.
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.
Admissibility of documents produced from the bar
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).
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.
Effect of the subsequent Aluoch J judgment and decree
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.
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.
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.The application by Notice of Motion dated 8th July 2003 be and is hereby dismissed with costs
- 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.