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Court of AppealDismissedNot stated in judgment

Adera v Machinery Services [1981] KECA 33 (KLR)

Court of Appeal of Kenya
24 March 1981
706 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse an 80-day delay in serving appeal documents, blaming the advocate and finding the appeal hopeless.

What this practically means

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Executive summary

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This is the reasoned decision of the Court of Appeal at Kisumu explaining the dismissal, on December 5, 1980, of an application for an extension of time within which to serve appeal documents on the respondent. The applicants' suit against Machinery Services for the return of a Lister diesel engine was dismissed by Cotran J in April 1980. Their advocate lodged the memorandum and record of appeal on the last day for filing under Rule 81, but the record was incomplete because no sealed decree had been extracted; a decree was signed by the Registrar only the day after the filing deadline. More significantly, the advocate breached rule 87 by failing to serve the appeal documents on the respondent within seven days of lodging, effecting service only on September 6, some eighty days out of time. His explanation - that the copies of the record were misplaced and carried off to Mombasa by a relative among some magazines for nearly three months - did not persuade the court. The applicants argued the decree defect was a mere procedural technicality, but the court held the delay was nobody's fault but their advocate's. The court also examined the merits of the intended appeal, which turned on whether the engine was bought from Machinery Services or Webuye Quarry, and found ample oral and documentary evidence supporting the trial judge's findings, leaving the appeal without reasonable prospects of success. The application was therefore dismissed with costs to the respondent.

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 should be granted an extension of time within which to serve the memorandum and record of appeal on the respondent, some eighty days out of time
  2. 2.Whether the intended appeal had any merit or reasonable prospects of success

Key legal issues

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01

Extension of time for service of appeal documents

Holding

The application for extension of time was refused because the delay was attributable entirely to the applicants' advocate, who misplaced the copies of the record of appeal for almost three months and failed to serve within seven days of lodging as required by rule 87.

Reasoning

The record was lodged on June 11, 1980, the last day under Rule 81. Service of the memorandum and record on the respondent, required within seven days under rule 87, was not effected until September 6, some eighty days late. The advocate explained that the copies were misplaced on June 14 and returned only on September 5 by a relative who had taken them to Mombasa among some magazines. The court found the applicants had not shown the failure was anyone's fault but their own.

p. 1
02

Merits of the intended appeal

Holding

The intended appeal, which turned on whether the Lister engine was purchased from Machinery Services or from Webuye Quarry, had no merit; the trial judge's findings were amply supported by oral and documentary evidence.

Reasoning

The trial judge found the engine was sold by Machinery Services to Webuye Quarry in November 1974 and by the latter to the applicants in December 1976. The respondent's advocate exhibited an invoice showing sale by Machinery Services to Webuye Quarry on November 25, 1974 of Lister diesel engine Serial Number 270 HRW 3A 24, matching the engine sold to the applicants. The applicants relied on a proforma invoice relating to a different engine and serial number. The court held the appeal had no reasonable prospects of success.

p. 2

Legal principles established

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  • An applicant for extension of time to serve appeal documents must satisfy the court that the failure to file a complete record and serve the appeal documents within the prescribed time was not the applicant's own fault.
  • In considering an extension of time application, the court will also examine the merits of the intended appeal, and an appeal without reasonable prospects of success will not be assisted by an extension.

Court orders

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  1. 1.The application for extension of time within which to serve the appeal documents on the respondent was dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya
Not stated in judgment
Jurisdiction invoked
Inherent power to extend time under the Court of Appeal Rules (application for extension of time within which to serve appeal documents)

Relief refused

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Extension of time to serve the appeal documents on the respondent

The delay of about eighty days was the applicants' advocate's own fault and the intended appeal had no reasonable prospect of success

p. 1

Costs

The application was dismissed with costs to the respondent.

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.

Mr Ajuang’ has failed to satisfy us that the failure to file a complete record on or before July 11, 1980 or to serve the appeal documents on the respondent within seven days thereafter, was anybody’s fault but his own.
p. 1Extension of time - blameless delay requirement
We do not think that there is any merit in the intended appeal or that it would have any reasonable prospects of success.
p. 2Merits of intended appeal
For the above reasons we dismissed the application with costs.
p. 2Disposition

Issues in the judgment

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minor

The judgment refers inconsistently to the last day for lodging the record, first stating it was June 11 and later referring to a failure to file a complete record on July 11, 1980.

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, "Adera v Machinery Services [1981] KECA 33 (KLR)", Case Analysis (1981). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1981/33/eng@1981-03-24

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