Duale v Savage & another
The bottom line
#Kenya's Court of Appeal refused to excuse an 8-month filing delay because the applicant offered no evidence, showing courts demand proof, not just excuses.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in serving the Record of Appeal was satisfactorily explained
The delay of 8 months was inordinate; the alleged illness was not stated in the supporting affidavit and no documentary proof was produced; the over one year delay in filing the motion was also unexplained.
The applicant relied on 'unfortunate personal events' and later on prolonged illness, but the supporting affidavit did not state the events and no hospital documents were produced. The court found the delay inordinate and unexplained, and noted the motion itself was filed over a year late without explanation.
Whether the appeal had chances of success and whether the respondent would suffer prejudice
The court was not satisfied the appeal would possibly succeed, and found the respondent would be prejudiced as he could not execute the judgment or return to England.
Applying the Mutiso principles, the single Judge reviewed the supporting affidavit and was not satisfied the appeal would possibly succeed, while being careful not to say more as a single Judge. Prejudice was found in the respondent's inability to execute the judgment and curtailment of his wish to return home.
Legal principles established
#- In exercising discretion under Rule 4 to extend time, the court considers the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
Court orders
#- 1.The applicant's motion dated 8th February 2021 is dismissed in its entirety with costs to the 1st respondent
- On appeal from
- Environment and Land Court, Nairobi
- ELC Case No. 270 of 2017
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 1(2) and 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duale v Savage & another", Case Analysis (2022). Civil Appeal (Application) E362 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/847/eng@2022-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.