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Court of AppealOtherCivil Application No. NAI. 157 of 2007· [2008] KECA 227 (KLR)

Richard Akwesera Onditi v Kenya Commercial Finance Co. Ltd

Court of Appeal of Kenya
25 April 2008
WDW. S. DeverellDAD. K. S. Aganyanya
1,370 words in judgment
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The bottom line

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The Court of Appeal refused to hear an extension-of-time application because the appellant's court record omitted the pleadings, adjourning it with costs against him.

What this practically means

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Executive summary

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This was an applicant's Notice of Motion dated 15th June 2007 in Civil Application No. NAI. 157 of 2007, brought under rule 4 of the Court of Appeal Rules by Richard Akwasera Onditi, appearing in person, seeking a further extension of time on the basis of the ruling of Onyango Otieno JA of 1st December 2006, with costs of the application to be in the appeal. The underlying dispute concerns charges over the applicant's Kakamega land arising from dealings with Kenya Commercial Finance Company Limited and a decision of Tanui J dated 18th September 2001. Deverell JA reviewed the procedural history: Onyango Otieno JA had earlier dismissed prayers for leave to file a further Notice of Appeal and for a stay, but allowed extension of time to file the record of appeal within fifteen days. The applicant instead withdrew the appeal NAI. 314 of 2006 and filed the present application. Tunoi JA, on 29th November 2007, had stood the application over and granted leave to file a supplementary record including the relevant documents. On the hearing before Deverell JA, the court found that although the judgment of Tanui J and the superior court proceedings had been incorporated, the applicant had still failed to include copies of the pleadings; the document styled 'Pleadings' was in substance an affidavit. The court did not determine the extension application on its merits. It ordered the application stood over to the next Kisumu session to allow the omission to be rectified, and awarded the costs occasioned by the adjournment to the respondent. The judgment is procedural and interlocutory, delivered as a single judicial officer's ruling, and establishes no substantive precedent.

Key legal issues

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01

Compliance with prior directions on the contents of the record of an extension-of-time application

Holding

The applicant, despite the order of Tunoi JA, failed to incorporate copies of the pleadings in the superior court in the record, and the application could not properly be heard until that omission was rectified

Reasoning

The court traced the history of the application, noting that Tunoi JA had on 29th November 2007 stood the application over and granted leave to file a supplementary record including the relevant documents. Although the applicant filed a supplementary record of 101 pages, the document headed 'Pleadings' was in substance an affidavit and did not include a plaint, Originating Summons or any other pleadings. The judgment of Tanui J and the proceedings were incorporated, but not the pleadings. The court therefore stood the application over again rather than determine it.

p. 4

Legal principles established

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  • An applicant seeking an extension of time must place before the Court a record containing the pleadings, the judgment or ruling and the proceedings in the superior court before the application can be considered

Court orders

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  1. 1.Application No. NAI. 157 of 2007 stood over to the next session in Kisumu to enable the omission of the pleadings from the record to be rectified
  2. 2.Costs occasioned by the adjournment awarded to the respondent
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension 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, "Richard Akwesera Onditi v Kenya Commercial Finance Co. Ltd", Case Analysis (2008). Civil Application No. NAI. 157 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/227/eng@2008-04-25

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