REUBEN M. MULI T/A KONZA MERCHANTS v KESHRA VISHRA T/A ALPESH ENTERPRISES [2007] KECA 450 (KLR)
The bottom line
#The Court of Appeal refused to extend time to appeal because the applicant left a 36-day delay completely unexplained in the supporting affidavit.
What this practically means
#Executive summary
#Key legal issues
#Test for extension of time under Rule 4 of the Court of Appeal Rules
The discretion is unfettered but must be exercised judicially upon relevant factors including period of delay, reason for delay, chances of success, prejudice to respondent, and compliance with time limits; not all factors need be considered in every case
The court restated the settled principles from Mutiso vs Mwangi and subsequent authorities, holding that the facts and circumstances of each application dictate the exercise of the unfettered discretion, which cannot be exercised whimsically or capriciously but must rest on some material on record.
Burden of explaining delay
Once a party is in default, the burden lies on that party to place before the Court the necessary and relevant material justifying exercise of the discretion in its favour; absent such material the delay is inordinate
The applicant's affidavit addressed only the earlier period before receipt of proceedings and said nothing about the 36-day delay between receipt of copies and filing of the application. Counsel conceded this. Following First American Bank of Kenya Ltd v Grandways Ventures Ltd, the court held the burden undischarge and the delay inordinate.
Merits of intended appeal as a factor
Consideration of the appeal's chances of success is optional and the single Judge makes no peremptory findings on merits; without the superior court's ruling the court could not assess the appeal either way
The only material was the draft memorandum and affidavit averments on triable issues, countered by the respondent's averments that the judgment was regular. Without the ruling that resolved the submissions, no finding could be made; the applicant's own failure to include the ruling meant he had himself to blame.
Decree versus order - appealability of summary judgment under Order 35
Summary judgment under Order 35 rule 1(1)(a) produces a decree appealable as of right under section 66 of the Civil Procedure Act; section 75 and Order XLII concern only appeals from orders and were irrelevant, making both counsel's arguments on leave to appeal misconceived
Relying on Ahn v Openda, the court held that the formal expression of an adjudication conclusively determining the parties' rights is a decree under section 2 of the Civil Procedure Act. The respondent executed a decree, confirming its nature. The notice of appeal, though late, was therefore procedurally proper without leave.
Legal principles established
#- On a Rule 4 extension-of-time application there is no limit to the number of relevant factors the Court may consider, and no requirement that all factors be considered; the facts of each application dictate the exercise of the discretion, which must be exercised judicially upon material on record
- Where a party is in default in filing a notice of appeal in time, it is for that party to place the necessary and relevant material before the Court to satisfy it that the discretion should nevertheless be exercised in its favour; unexplained delay is inordinate
- The period taken in obtaining a certificate of delay is not excluded from time under the proviso to rule 81 of the Court of Appeal Rules
- A determination under Order 35 rule 1(1)(a) of the Civil Procedure Rules (summary judgment) results in a 'decree' and not an 'order'; such decrees are appealable as of right under section 66 of the Civil Procedure Act, and section 75 with Order XLII (appeals from orders) does not apply
- Time does not run against an applicant where the court itself failed to serve notice of a ruling before delivering it; a notice of appeal filed promptly after learning of such a ruling is excusable
Court orders
#- 1.The application dated 15th December 2005 and filed on 30th December 2005 is dismissed
- 2.Costs of the application to be borne by the applicant
- On appeal from
- High Court of Kenya (Mombasa Law Courts)
- null
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "REUBEN M. MULI T/A KONZA MERCHANTS v KESHRA VISHRA T/A ALPESH ENTERPRISES [2007] KECA 450 (KLR)", Case Analysis (2007). Civil Application (Mombasa), application dated 15th December 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/450/eng@2007-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.