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Court of AppealDismissedCivil Application No. (unstated), arising from Civil Application No 74 of 1985

Muruaru Kibuku v James Mwangi Kamau & NaftaryMwangi [1987] KECA 10 (KLR)

High Court of Kenya
16 October 1987
MJMasime AG J
395 words in judgment
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The bottom line

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Kenya's High Court refused to extend appeal time for a fifteen-month delay, ruling the applicant's excuses were unsupported and unsatisfactory.

What this practically means

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Executive summary

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The applicant had been ordered by Platt JA in Civil Application No 74 of 1985 to file his intended appeal within 30 days from January 29, 1986. He failed to do so and, some fifteen months later, sought a further extension of time, relying on three reasons: that a letter notifying him of the order was sent to his son's former employers in Nairobi and never reached him; that he was seriously injured in a road traffic accident on March 15, 1986 and has been attending hospital regularly at the age of sixty-five; and that his former advocates demanded Kshs 10,000 as balance of fees before releasing his file. The respondent, appearing through counsel though filing no affidavit in reply, opposed the application, noting that the order intended to be appealed from rested on a plea of res judicata arising from Thika RMCC 147 of 1975 between the same parties over the same suit premises; that the medical report indicated the applicant would be cured within two months; and that there was no evidence of the fees demand. Masime AG J, in a brief ex tempore ruling, held that the reasons for the delay were unsatisfactory, refused the extension sought, and dismissed the application with costs on October 16, 1987.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted a further extension of time to file his intended appeal after failing to file within the 30 days ordered by Platt JA
  2. 2.Whether the applicant's explanations for the delay (non-receipt of notice, road traffic accident, advocates' demand for fees) were satisfactory

Key legal issues

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01

Whether the applicant's explanations justified a further extension of time

Holding

The explanations were unsatisfactory and the extension was refused

Reasoning

The court considered three reasons advanced: that notice of the order never reached the applicant because it went to his son's former employers; a road traffic accident of March 1986; and his advocates' demand for Kshs 10,000 before releasing his file. The respondent pointed out that the medical report indicated recovery within two months and that no evidence of the fees demand was produced. The delay of about fifteen months against a 30-day order was inordinate and unexplained satisfactorily.

p. 2

Legal principles established

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  • An applicant seeking a second extension of time after failing to comply with a prior court-ordered period must give satisfactory reasons for the delay

Court orders

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  1. 1.Extension of time sought is refused
  2. 2.The application is dismissed with costs

The bench

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

MJ
majority

Wrote the judgment

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null
On appeal from
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Jurisdiction invoked
Inherent jurisdiction of the High Court to extend time for filing an appeal (order of Platt JA in Civil Application No 74 of 1985)

Relief refused

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Further extension of time to file the intended appeal

The applicant's reasons for the fifteen-month delay were not satisfactory and no evidence supported the claim of advocates' fees

p. 2

Costs

Application 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.

The applicant’s reason for delay are in my view not satisfactory. I therefore refuse the extension sought and dismiss the application with costs.
p. 2Final orders - refusal of second extension of time
I have carefully considered this application which was filed into court on May 15, 1987 some fifteen months after applicant was given 30 days within which to lodge his appeal.
p. 2Inordinate delay in complying with an order for extension of time

Issues in the judgment

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minor

The judgment does not state the number of the present application, only that it arises from Civil Application No 74 of 1985 before Platt JA

minor

The judgment date is printed as 'Ocober 16, 1987' - an apparent typographical error for October

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, "Muruaru Kibuku v James Mwangi Kamau & NaftaryMwangi [1987] KECA 10 (KLR)", Case Analysis (1987). Civil Application No. (unstated), arising from Civil Application No 74 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/10/eng@1987-10-16

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