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Court of AppealOtherNot stated in judgment· [2008] KECA 33 (KLR)

Aloise Mpalale Libololo & another v Kefa Gudahi [2008] KECA 33 (KLR)

Court of Appeal of Kenya
28 November 2008
440 words in judgment
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The bottom line

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Kenya's Court of Appeal adjourned an extension-of-time appeal application because the deceased respondent had to be substituted before it could proceed.

What this practically means

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Executive summary

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This was a single-judge application under Rule 4 of the Court of Appeal Rules for extension of time to file notice and record of appeal out of time, directed against a High Court judgment of B.K. Tanui, J, delivered on 2nd February 1994. The applicant, by supporting affidavit, explained that after the judgment he instructed his then advocates to lodge an appeal and seek a stay, but fell sick and was bedridden, only recovering on 5th December 1996; on learning that the appeal had not been filed for lack of filing fees, he instructed new counsel who lodged the application in December 1996. The application was argued on 24th November 2008 in the absence of the respondent and his counsel, despite service, with counsel relying on documents evidencing the applicant's period of medication. Aganyanya, JA accepted the applicant's averments and submissions but noted unchallenged orders on the record indicating that the respondent is deceased, made in the presence of the applicant's counsel or his representative, which had previously caused adjournments and which counsel did not disapprove. The judge accordingly made no formal order on the application and adjourned it for a fresh hearing date to be fixed at the Registry, after confirmation whether the respondent is or is not deceased and appropriate substitution. The judgment was delivered at Kisumu on 28th November 2008. No costs order was made and no authorities were cited.

Key legal issues

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01

Single-judge jurisdiction under Rule 4

Holding

Rule 4 empowers one member of the bench to hear and determine an application for extension of time, exercising discretion according to the circumstances of each case

Reasoning

The judge identified the application as one for extension of time to lodge notice and record of appeal, expressly grounded in Rule 4, which vests the discretion in a single judge sitting as the court. No determination on the merits was reached because a preliminary factual issue - the respondent's reported death and the need for substitution - had to be resolved first.

p. 1
02

Effect of the respondent's reported death on the application

Holding

Where the record shows orders indicating the respondent is deceased, made in the presence of the applicant's counsel, the application cannot proceed until the position is confirmed and the respondent substituted

Reasoning

Although the applicant explained his delay by prolonged illness and bedriddenness from the 1994 judgment until December 1996, the court noted unchallenged orders on the record indicating the respondent is deceased, which had previously caused adjournments. Counsel offered nothing to disapprove those orders. The judge therefore declined to make any formal order and adjourned for a fresh hearing after confirmation of death and substitution.

p. 2

Legal principles established

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  • An application for extension of time under Rule 4 of the Court of Appeal Rules may be heard and determined by a single judge of the Court, who decides it according to 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

Authorities

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Legislation

  • Court of Appeal RulesRule 4
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single judge jurisdiction to extend 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 Libololo & another v Kefa Gudahi [2008] KECA 33 (KLR)", Case Analysis (2008). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/33/eng@2008-11-28

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