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Court of AppealDismissedNot stated in the judgment (Notice of Motion dated 25th June, 2024, Court of Appeal, Kisumu)

Mwamba & 6 others v Makwolo & 3 others (Civil Application E079 of 2024) [2024] KECA 1579 (KLR)

Court of Appeal of Kenya
8 November 2024
1,158 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to extend time for filing an appeal record because the applicants delayed requesting proceedings and could not explain their delay.

What this practically means

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Executive summary

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This was a single-Judge application under Rule 4 of the Court of Appeal Rules, read with Rule 55(1) of the Court of Appeal Rules, 2022, in which seven applicants sought extension of time to file and serve the record of appeal out of time. They intended to appeal against the decision of the High Court in Kisii Civil Appeal No. 119 of 2019, delivered on 4th May 2023, which dismissed their application to set aside an ex-parte judgment of the Magistrate's Court. The applicants relied on a certificate of delay issued by the Deputy Registrar discounting the period between 16th November 2023 and 17th April 2024 as time taken to prepare proceedings. The respondents, through a replying affidavit sworn by James Nyachwaya Makwolo, opposed the application, contending it was defective and unexplained. Applying the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC, that extension of time is an equitable remedy available only to a deserving party who must lay a basis to the court's satisfaction, Okwengu, JA found the applicants' presentation casual. They gave no explanation for the roughly fifty-day delay before requesting proceedings, the request was made outside the thirty-day window under section 84(1) and was not copied to the respondents as required by section 84(2), and the certificate of delay was internally suspect. The application was dismissed with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants had laid a basis sufficient to warrant the exercise of the single Judge's discretion to extend time for filing and serving the record of appeal
  2. 2.Whether the certificate of delay could be relied upon in computing time for filing the record of appeal given the late request for proceedings

Key legal issues

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01

Whether the applicants demonstrated sufficient grounds for extension of time under Rule 4

Holding

The application failed because the applicants were casual and gave insufficient information on the reasons for the delay and the prejudice, and the delay of about fifty days before applying for proceedings was unexplained.

Reasoning

The court applied the Salat principles: extension of time is an equitable remedy for a deserving party who must lay a basis. Here, the applicants did not explain why it took about fifty days after the ruling to request proceedings, why more than twenty days elapsed after receiving the certificate of delay before filing the application, or what prejudice they would suffer. Casual presentation by both parties reinforced the refusal of the discretionary relief.

p. 3
02

Whether the certificate of delay could be relied upon to discount time in computing the period for filing the record of appeal

Holding

The certificate of delay could not assist the applicants because they requested proceedings outside the thirty-day window and did not copy the request to the respondents; the certificate itself was also suspect on its face.

Reasoning

Section 84(1) of the Court of Appeal Rules excludes time taken to supply proceedings only where the request was made within thirty days of the decision, and section 84(2) withdraws that benefit where the request was not copied to the respondent. The applicants' request was made about fifty days after judgment and was not copied to the respondents. The certificate of delay was also internally contradictory, indicating the proceedings were ready on 17th April 2024 yet issued only on 4th June 2024.

p. 3

Legal principles established

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  • Extension of time is not a right of a party; it is an equitable remedy available only to a deserving party, and the party seeking it bears the burden of laying a basis to the satisfaction of the court.
  • Under the proviso on computation of time, time taken to supply a copy of proceedings is excluded only where the request for proceedings was made within thirty days of the decision and the request was copied to the respondent.

Court orders

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  1. 1.The Notice of Motion dated 25th June, 2024 seeking extension of time to file and serve the record of appeal out of time was dismissed
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya at Kisii
Kisii Civil Appeal No. 119 of 2019
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules read together with Rule 55(1) of the Court of Appeal Rules, 2022 (discretion of a single Judge to extend time)

Relief refused

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Extension of time to file and serve the record of appeal out of time

The applicants failed to lay a basis for the exercise of the court's discretion; no adequate explanation for the delay in applying for proceedings or filing the record, and the certificate of delay could not assist them because the request for proceedings was made outside thirty days and was not copied to the respondents

p. 3

Costs

I make no orders as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court.
p. 2Nature of extension-of-time discretion
A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court.
p. 2Burden on applicant for extension of time
To this extent, the applicants cannot rely on the certificate of delay to have time extended as they applied for the proceedings outside the required time.
p. 3Effect of late request for proceedings on computation of time
Consequently, the application is dismissed. I make no orders as to costs.
p. 3Final orders and disposition

Issues in the judgment

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minor

The judgment refers to 'Section 84(1)' and 'Section 84(2)' of the Court of Appeal Rules, using 'section' language for provisions of subsidiary rules rather than 'rule' numbering, which is an apparent drafting inconsistency.

minor

The judgment describes the intended appeal as against the High Court judgment in Kisii Civil Appeal No. 119 of 2019 delivered on 4th May 2023, but elsewhere indicates the subject of the intended appeal is a ruling of the High Court dismissing a motion to set aside ex-parte judgment; the nature of the decision appealed from is not precisely identified and no copy of the ruling was availed.

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, "Mwamba & 6 others v Makwolo & 3 others (Civil Application E079 of 2024) [2024] KECA 1579 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 25th June, 2024, Court of Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1579/eng@2024-11-08

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