Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNotice of Motion dated 17th February 2021 (Civil Application, Court of Appeal)· [2021] KECA 271 (KLR)

Ahmed v Rishard Abdul Rehman Khator (aka Rishad Abdul Rehman Khator) Ali Bwana Bwanaadi (as Administrators of the Estate of Tima and Fatuma Chilidren of Ali Bashir (Deceased) & 2 others (Civil Appeal (Application) E018 of 2020) [2021] KECA 271 (KLR)

Court of Appeal of Kenya
3 December 2021
JLJ. Lesiit
1,732 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal dismissed an extension-of-time application, holding that two months' unexplained delay past the 30-day rule 84 deadline cannot be forgiven.

What this practically means

#

Executive summary

#
This is a single-judge decision of the Court of Appeal at Nairobi delivered by Lesiit JA on 3rd December 2021, determining a Notice of Motion dated 17th February 2021 brought under Rules 4, 41 and 47 of the Court of Appeal Rules. The applicants, the original plaintiffs in the underlying suit before the Environment and Land Court at Mombasa, sought extension of time so that their parallel application to strike out the respondent's record of appeal for want of proper service could be deemed filed within time. They argued that notices of intention to act in person and change of advocates had been expunged by Munyao J. on 20th June 2020, so service of the record of appeal on the incoming firm was irregular and contemptuous. The respondent opposed, contending the notice of appeal had been served on S.M. Kimani, the applicants' then advocate, on 18th November 2019, that the applicants never filed a notice of address of service under rule 79(1)(a), and that any prejudice was cured when they received the record on 29th January 2021. Applying the well-known Leo Sila Mutiso extension-of-time factors, the court found service on the applicants' advocate was effective and started time running; the application should have been filed within 30 days of service under rule 84, but came about three months later. The delay of two months was held inordinate and unexplained, the applicants having blamed the respondent for circumstances of their own making. The application was dismissed for lack of merit. No costs order was stated. The decision turned the applicants away and left the record of appeal in place to be heard on merits.

Key legal issues

#
01

Extension of time to strike out appeal out of the rule 84 timeline

Holding

The application was dismissed because the delay was inordinate and unexplained; service of the notice of appeal on the applicants' then-advocate started time running

Reasoning

The court applied the Leo Sila Mutiso factors. Service of the notice of appeal was effected on S.M. Kimani, advocate on record, on 18th November 2019, disproving the applicants' denial of service. The application filed in February 2021 was months late of the 30-day rule 84 window. The applicants offered no reasonable explanation, blaming the respondent for the very circumstances flowing from their own failure to file notice of address of service under rule 79(1)(a).

p. 4
02

Effect of service of notice of appeal on advocate on record

Holding

Service on the advocate on record within the prescribed time was effective and started time running, despite the advocate's later letter indicating loss of instructions

Reasoning

The notice of appeal annexed showed stamps of service on 18th November 2019 including on S.M. Kimani advocate. The letter from Stephen Macharia Kamau advocates disclaiming instructions came later, in January 2020. The court held the applicants' assertion that they were unaware of the notice until 29th January 2021 could not be correct, since service had been effected on their advocate within the prescribed time.

p. 4

Legal principles established

#
  • An application to strike out a notice of appeal or record of appeal under rule 84 must be brought within thirty days of service of the notice of appeal or record of appeal
  • The decision whether or not to extend time for appealing is discretionary, taking into account length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent

Court orders

#
  1. 1.The application dated 17th February 2021 is dismissed for lack of merit

Authorities

#

Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 41
  • Court of Appeal Rules, 2010Rule 47
  • Court of Appeal Rules, 2010Rule 79(1)(a)
  • Court of Appeal Rules, 2010Rule 84

Cases cited (1)

  • Leo Sila Mutiso v. Rose Helen Wangari Mwangi
    Civil Application No NAI 251 of 1997 (unreported)
On appeal from
Environment and Land Court, Mombasa
Jurisdiction invoked
Rules 4, 41 and 47 of the Court of Appeal Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ahmed v Rishard Abdul Rehman Khator (aka Rishad Abdul Rehman Khator) Ali Bwana Bwanaadi (as Administrators of the Estate of Tima and Fatuma Chilidren of Ali Bashir (Deceased) & 2 others (Civil Appeal (Application) E018 of 2020) [2021] KECA 271 (KLR)", Case Analysis (2021). Notice of Motion dated 17th February 2021 (Civil Application, Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/271/eng@2021-12-03

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