PETER G.N. NG’ANG’A & ANOTHER v HALL EQUATORIAL LIMITED [2007] KECA 430 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time for filing an appeal record where the applicants gave fabricated and unexplained reasons for delay.
What this practically means
#Executive summary
#Key legal issues
#Genuineness of the explanation for delay
The court found the applicants' claim that they returned the Judge-approved draft order to the respondent's advocates for further approval to be untrue and fabricated to buy time.
The annexures to the applicants' affidavits did not support the claim; counsel admitted at the bar there was no letter showing the approved draft was sent to the respondent's advocates, though all his other enclosures were accompanied by letters. The order was only filed on 8th August 2003, over a month after Rimita J approved the draft on 25th June 2003.
Unexplained delay after obtaining certified copies
No explanation was offered for the delay between 3rd September 2003, when the certified order was collected, and 3rd October 2003, when the application was filed.
By 3rd September 2003 the applicants' counsel had the certified order and copies of proceedings and had already filed a timely notice of appeal. The three affidavits filed by the applicants were silent on what happened in that one-month period, and the court could not see why preparation of the application should have taken that long.
Frivolousness of the intended appeal
The applicants failed to discharge the burden of showing the intended appeal was not frivolous, having filed no draft memorandum of appeal and given no indication of their grievances against the ruling.
Although the applicants had the proceedings and decision long before filing the application, they never filed a draft memorandum of appeal, did not file copies of the application dismissed by the superior court, and did not indicate in their affidavits the nature of their grievances against the ruling.
Prejudice to the respondent
The prejudice question favoured the respondent, a judgment creditor being kept out of the fruits of a judgment obtained before 23rd October 2002.
The matter concerned an attempt to stop execution of a judgment obtained long before the applicants' October 2002 application; a stay application had been dismissed, meaning the respondent was being kept out of the fruits of its success. The applicants retained their constitutional right of appeal, but on these facts prejudice favoured the respondent.
Legal principles established
#- In deciding an application under rule 4 the court exercises a discretion that must be exercised judiciously and upon reason, considering factors including the length of delay, explanation for delay, prejudice to the other party, the merits of the appeal, effect on public administration, importance of compliance with time limits and the parties' resources; the list of factors is not exhaustive.
- The discretion under rule 4 is unfettered and the factors to be considered are not limited to any fixed list.
- The explanation required for delay in filing a record of appeal must be a genuine explanation, even if based on ignorance of the law; a fabricated explanation does not suffice.
- The applicant bears the burden of demonstrating that the intended appeal would not be frivolous.
Court orders
#- 1.The application dated 29th September 2003 seeking extension of time to lodge and serve the record of appeal is dismissed
- 2.Costs of the application to the respondent
- On appeal from
- High Court of Kenya
- Civil Suit No. 5400 of 1991
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PETER G.N. NG’ANG’A & ANOTHER v HALL EQUATORIAL LIMITED [2007] KECA 430 (KLR)", Case Analysis (2007). Civil Application No. Nai. 254 of 2003 (intended appeal from High Court Civil Suit No. 5400 of 1991). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/430/eng@2007-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.