Christopher Maina Kimaru v Josephine Wairimu Ngari & another [2018] KECA 740 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal because the lawyer missed procedural steps and never explained the delays.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the appeal was excusable
The delay was inordinate and unexplained; the applicant failed to account for successive lapses between the notice of appeal, the request for proceedings, collection of the Certificate of Delay and filing of the motion.
The court traced the chronology: notice of appeal lodged 7th December 2016; proceedings requested only on 27th February 2017 without copying respondents as rule 82 requires; proceedings ready 29th May 2017; Certificate of Delay issued 2nd August 2017 but collected 21st September 2017; motion filed 16th October 2017. None of these gaps were explained on affidavit, so the discretion could not be exercised in the applicant's favour.
Effect of non-compliance with rule 82 on the Certificate of Delay
Because the letter requesting proceedings was not copied to the respondents, the Certificate of Delay could not assist the applicant.
Rule 82 of the Court of Appeal Rules requires the letter bespeaking proceedings to be copied to the opposite side. Non-compliance deprives the applicant of the benefit of a Certificate of Delay, since the adverse party is entitled to notice of steps being taken. Counsel for the respondents raised this point and the court agreed with him.
Relationship between the overriding objective and compliance with rules of court
The overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act does not uproot established principles or relieve parties of compliance with procedural requirements.
Following City Chemist (Nbi) v Oriental Commercial Bank, the court held that the overriding objective enriches rather than displaces established discretion principles. Compliance with time lines and procedural requirements gives the adverse party proper notice and maintains certainty and stability in the law.
Legal principles established
#- The principles for extension of time under Rule 4 are well established: the period of delay, reason for delay, chances of the appeal succeeding, prejudice to the respondent and other relevant factors are all considered.
- A Certificate of Delay only assists an applicant where the letter bespeaking proceedings was copied to the opposite side as required by rule 82 of the Court of Appeal rules.
- Notwithstanding the overriding objective under the Constitution, 2010 and Sections 3A and 3B of the Appellate Jurisdiction Act, parties remain bound to comply with procedural requirements, including copying correspondence to the adverse party.
- An applicant for extension of time is duty bound to give a reasonable explanation for the delay; absent such explanation the discretion will not be exercised in his favour.
Court orders
#- 1.The Notice of Motion seeking leave to appeal out of time was dismissed
- On appeal from
- High Court of Kenya
- Not stated in the excerpt
- Jurisdiction invoked
- Section 3 of the Appellate Jurisdiction Act (leave to appeal out of time); Sections 3A and 3B of the Appellate Jurisdiction Act (overriding objective)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christopher Maina Kimaru v Josephine Wairimu Ngari & another [2018] KECA 740 (KLR)", Case Analysis (2018). Not stated in the excerpt (Notice of Motion seeking leave to appeal out of time). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/740/eng@2018-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.