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Court of AppealOtherNot stated in the judgment· [2008] KECA 21 (KLR)

Aloise Mpalale Libolol & another v Kefa Gudahi [2008] KECA 21 (KLR)

Court of Appeal of Kenya
28 November 2008
DAD.K.S. Aganyanya
443 words in judgment
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The bottom line

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The Court of Appeal postponed ruling on an extension-of-time application until it is confirmed whether the respondent is deceased and properly substituted.

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 Kisumu, delivered by Aganyanya, JA, on an application under Rule 4 of the Court of Appeal Rules for extension of time to file notice and record of appeal out of time. The intended appeal challenged the judgment of Tanui, J, delivered on 2 February 1994. The applicant explained the delay through a supporting affidavit: after instructing counsel to lodge an appeal and seek stay, he fell ill and was bedridden until 5 December 1996, after which he learned the appeal had never been filed for lack of filing fees. When the application came up for hearing on 24 November 2008, counsel for the applicant argued it, supported by documents evidencing the period of medication; the respondent and his counsel did not appear although served. The court expressed no quarrel with the applicant's averments and submissions. However, the record contained orders indicating that the respondent was deceased, all made in the presence of the applicant's counsel or his representative, which counsel did not disapprove and which had caused prior adjournments. The Judge accordingly made no formal order on the application, adjourning it for a fresh hearing date to be fixed at the Registry, to be heard after confirmation whether the respondent was or was not deceased and after appropriate substitution. No costs order was made. The ruling is interlocutory and determines no substantive right.

Key legal issues

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01

Determination of a Rule 4 extension-of-time application where the respondent appears to be deceased

Holding

The court declined to make any formal order and adjourned the application for a fresh hearing after confirmation of the respondent's status and substitution, since orders indicating the respondent's death were made in the presence of the applicant's counsel.

Reasoning

The applicant's explanations for delay (illness and bedridden state until December 1996) were not disputed, and the respondent did not appear despite service. However, the record contained orders indicating the respondent was deceased, made in the presence of the applicant's counsel or his representative, and counsel said nothing to disapprove them. These orders had caused previous adjournments. The court thus could not determine the extension application until the issue of the respondent's death and substitution was resolved.

p. 2

Legal principles established

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  • An application for extension of time under Rule 4 may be heard and determined by a single Judge of the Court of Appeal, who considers whether to grant it depending on the circumstances of each case.

Court orders

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  1. 1.No formal order made on the extension-of-time application
  2. 2.Application adjourned for a fresh hearing date to be fixed at the Registry
  3. 3.Hearing to proceed only after confirmation whether the respondent is or is not deceased and appropriate action taken to substitute him
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time to file notice and record of appeal out of time)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Aloise Mpalale Libolol & another v Kefa Gudahi [2008] KECA 21 (KLR)", Case Analysis (2008). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/21/eng@2008-11-28

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