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Court of AppealDismissedCivil Application No. NAI. 315A of 2007 (as the present motion dated 23rd May, 2007, lodged 24th May, 2007)· [2007] KECA 18 (KLR)

RELIANCE BANK LIMITED (IN LIQUIDATION) v GRANDWAYS VENTURES LTD. & 2 others & another [2007] KECA 18 (KLR)

Court of Appeal of Kenya
13 July 2007
ROR. S. C. Omolo
2,285 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed Reliance Bank's bid for more time to appeal, confirming that every day of filing delay must be explained.

What this practically means

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Executive summary

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This is a single-Judge ruling of the Court of Appeal at Nairobi by Omolo, JA, delivered on 13th July 2007, on an application under Rule 4 of the Court of Appeal Rules by Reliance Bank Ltd (In Liquidation) for extension of time to lodge a notice of appeal and record of appeal against a judgment of the High Court at Kisumu (HCCC No. 272 of 2001) delivered by Mwera, J on 10th August 2006, the judgment having been written by Tanui, J before his retirement and delivered pursuant to section 62(2) of the Constitution. The court held that the retired judge was entitled to that course, but found that the notice of the delivery date was sent only to the Respondents' advocates, so the Applicant could not be blamed for absence at delivery. However, the court rejected as untruthful the Applicant's assertion that its advocates first learned of the judgment on 31st October 2006, since a letter of 11th August 2006 from the 1st Respondent's advocates notifying delivery had been received. The court identified two periods of unexplained delay, notably 64 days between the withdrawal of a first defective motion and the filing of the present one. Applying the settled principle that any delay, even of one day, must be explained, the court dismissed the motion with costs to the 1st Respondent, the 2nd Respondent not having participated. The question of counsel's authority from the liquidator was raised but left undetermined for want of material.

Key legal issues

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01

Whether delay in filing an application for extension of time must be explained

Holding

Yes - any delay, even of one day, must be explained before extension of time may be granted under Rule 4.

Reasoning

The court endorsed the settled principle from Kenya Ports Authority v Silas Obengele that every period of delay requires explanation. Two periods were identified: 10th August 2006 to 15th December 2006, and 21st March 2007 to 24th May 2007 (64 days). The latter was entirely unexplained, defeating the application despite the merits of the intended appeal.

p. 5
02

Whether the explanation that the Applicant's advocates first learned of the judgment on 31st October 2006 was credible

Holding

No - the explanation was rejected as untruthful because a letter of 11th August 2006 from the 1st Respondent's advocates notifying delivery of judgment had been received, as shown by its annexure to a replying affidavit in the withdrawn motion.

Reasoning

The court found as a fact that although the notice of delivery of judgment was sent only to the Respondents' advocates, the 1st Respondent's counsel wrote on 11th August 2006 to the Applicant's advocates informing them judgment had been delivered. Mr. Mwagambo's claim to be seeing the letter for the first time was untenable since it was annexed to Shah's replying affidavit in the earlier motion.

p. 4
03

Whether a retired judge's judgment written and delivered by another judge under section 62(2) of the Constitution was valid, and whether lack of notice of delivery vitiated the proceedings

Holding

The practice was permissible under section 62(2) of the Constitution, but the Applicant was not notified of the delivery date and therefore could not be blamed for absence at delivery.

Reasoning

The court held Tanui, J was entitled to write his judgment and have Mwera, J deliver it pursuant to section 62(2) of the Constitution. However, the notice of delivery was sent only to the 1st and 2nd Respondents' advocates, so the Applicant's absence was excused. This did not, however, excuse the subsequent unexplained delays.

p. 2

Legal principles established

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  • Wherever there is delay, even for one day, the party seeking extension of time must offer some explanation for it before the discretion under Rule 4 can be exercised in its favour.
  • A party who treats an unexplained delay as requiring no explanation is not being fair to the single Judge exercising the Rule 4 discretion; even a potentially good appeal must be filed within prescribed periods.

Court orders

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  1. 1.The Applicant's notice of motion dated 23rd May, 2007 and lodged in the Court on 24th May, 2007 is dismissed with costs to the 1st Respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 74(2)
  • Constitution of KenyaSection 62(2)

Cases cited (1)

  • Kenya Ports Authority vs. Silas Obengele
    Civil Application No. 297 of 2004 (unreported)
On appeal from
High Court of Kenya at Kisumu
Kisumu HCCC No. 272 of 2001
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single Judge's discretionary jurisdiction to extend time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "RELIANCE BANK LIMITED (IN LIQUIDATION) v GRANDWAYS VENTURES LTD. & 2 others & another [2007] KECA 18 (KLR)", Case Analysis (2007). Civil Application No. NAI. 315A of 2007 (as the present motion dated 23rd May, 2007, lodged 24th May, 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/18/eng@2007-07-13

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