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Court of AppealAllowedCivil Application E071 of 2022· [2022] KECA 1131 (KLR)

Ekesa v Ekakoro

Court of Appeal
21 October 2022
FTF Tuiyott
1,239 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu (Tuiyott, JA) on a Notice of Motion dated 24th May 2022 brought under rule 4 of the Court of Appeal Rules seeking extension of time to file an appeal out of time against the judgment of A. Omollo, J of the High Court of Busia in Busia ELC Case No. 55 of 2018 delivered on 10th November 2021. The applicant deposed that he filed a notice of appeal and applied for proceedings immediately after judgment; a certificate of delay was issued on 23rd February 2022, and he could not file the record of appeal because his former advocate did not hand over the complete file and the exhibits were missing from the court file. The respondent opposed by grounds of contention that the incoming firm was not properly on record, that no tenable reasons for delay were given, and that the decree had been fully executed. The court applied the Fakir Mohamed principles: the discretion must be exercised judiciously, considering explanation for delay, inordinateness, prejudice and possibly prospects of success. Because the respondent relied on grounds of opposition rather than a replying affidavit, the applicant's uncontroverted affidavit evidence was accepted as a true account. The objection on representation failed as it was a factual matter not deposed to and not admitted. Holding that the delay of about 30 days past the extended deadline was not inordinate and that no prejudice to the respondent was shown, the court allowed the motion, ordered costs in the appeal, and directed that the appeal be instituted and served within 30 days of the ruling.

Key legal issues

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01

Extension of time to institute an appeal under Rule 4

Holding

Extension granted where uncontroverted affidavit evidence showed a certificate of delay, a plausible explanation (missing exhibits), delay of about 30 days past the deadline, and no prejudice to the respondent.

Reasoning

The applicant bespoke proceedings under the proviso to rule 82(1), freezing time for preparation of proceedings. The certificate of delay extended the deadline to 25th April 2022. The explanation for missing that deadline - incomplete file and missing exhibits - was unrebuted because the respondent relied on grounds of opposition rather than a replying affidavit. The delay of about 30 days was not inordinate and no prejudice was shown.

02

Whether the incoming advocate is properly on record

Holding

The objection failed because it was raised in grounds of opposition, not on affidavit, and was not admitted.

Reasoning

The court treated the contention as a matter of fact requiring affidavit evidence. Since it was not admitted and no affidavit supported it, the respondent could not discharge the burden of establishing that the firm was not properly on record under order 9 rule 5 of the Civil Procedure Rules.

p. 2

Legal principles established

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  • The Rule 4 discretion must be exercised judiciously, considering explanation for delay, inordinateness, prejudice and prospects of success.
  • A contention raised only in grounds of opposition, not deposed to in an affidavit and not admitted, cannot found a finding that counsel is not properly on record.
  • A memorandum of appeal cannot be filed before leave to appeal out of time is obtained.

Court orders

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  1. 1.The Notice of Motion dated 24th May 2022 is allowed
  2. 2.Costs shall be in the appeal
  3. 3.The appeal shall be instituted and served within 30 days of the Ruling

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 82 (now rule 84)
  • Civil Procedure Rulesorder 9 rule 5

Cases cited (1)

  • Fakir Mohamed -Vs- Joseph Mugambi & 2 others
    [2005] eKLR

    Principles for exercise of discretion in extension of time applications

On appeal from
High Court of Busia
Busia ELC Case No. 55 of 2018
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010 (discretion to extend 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, "Ekesa v Ekakoro", Case Analysis (2022). Civil Application E071 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1131/eng@2022-10-21

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