Githuka v McCRAES Limited (Civil Application 001 of 2021) [2021] KECA 224 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an 11-year-late appeal request because the application's affidavit was unsigned, the respondent was never served, and no arguable appeal was shown.
What this practically means
#Executive summary
#Key legal issues
#Effect of an unsigned supporting affidavit
An unsigned affidavit is fatally defective and cannot sustain the application
The court adopted the reasoning in Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli, finding that an affidavit purportedly sworn but not signed fails as a matter of law. Because the Motion rested entirely on that affidavit, the fatal defect undermined the whole application and justified refusal of the discretionary relief sought under Rule 4.
Service requirements under Rules 49(1) and 77(1)
An application under Rule 4 must be served on the respondent, and the Notice of Appeal must likewise be served; failure is a ground for dismissal
The applicant produced no evidence of service of either the Motion or the Notice of Appeal dated 15th October 2010. Combined with the delay of more than eleven years since the impugned judgment and ten years since leave to appeal as a pauper, the court found the applicant had not satisfied it that the discretion under Rule 4 should be exercised in his favour.
Demonstrating an arguable appeal
An applicant for extension of time must show the intended appeal is arguable; in the absence of a Memorandum of Appeal the court could not so find
The applicant annexed no Memorandum of Appeal, and the judgment exhibited was uncertified. The court therefore had no material on which to assess arguability or the prospect of success. Together with the inordinate delay and procedural defects, this led to dismissal of the Motion as incompetent.
Legal principles established
#- An unsigned affidavit filed in support of an application is fatally defective
- Rule 4 confers an unfettered discretion on the Court to extend time, exercisable on such terms as it thinks just
Court orders
#- 1.The applicant's Notice of Motion dated 11th February 2021 is dismissed as incompetent
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi High Court Civil Appeal No. 875 of 2003
- Jurisdiction invoked
- Rules 4 and 82 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Githuka v McCRAES Limited (Civil Application 001 of 2021) [2021] KECA 224 (KLR)", Case Analysis (2021). Civil Application (Notice of Motion dated 11th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/224/eng@2021-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.