Ako v Special District Commissioner Kisumu & another (Civil Appeal 27 of 1989) [1989] KECA 50 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the six-month limit in section 9(3) of the Law Reform Act is absolute or capable of liberal interpretation permitting enlargement of time under Order 49 rule 5 of the Civil Procedure Rules
Key legal issues
#Whether the statutory six-month bar on applications for leave under section 9(3) of the Law Reform Act is subject to the court's power to enlarge time under Order 49 rule 5 of the Civil Procedure Rules
The prohibition is statutory and absolute; procedural rules permitting enlargement of time cannot override it.
The court held that the six-month limitation is a statutory prohibition that procedural provisions of the Civil Procedure Rules cannot displace. Order 49 rule 5, which permits enlargement of time, is a procedural provision and cannot be used to overcome the clear statutory bar. A liberal interpretation would do violence to the clear language of section 9(3).
The weight of the decision in Girado Othieno Mahaja v Khafulu Khatwalo & another cited by the appellant
The cited precedent conforms to the court's strict interpretation and does not assist the appellant.
Counsel for the appellant cited the Court of Appeal's own decision in Girado Othieno Mahaja in support of enlargement of time. The court held that the decision accords with its view of the correct interpretation of section 9(3) and therefore does not advance the appellant's case. Obiter views of Hancox JA favouring liberal construction were not essential to the decision and were based on English rules not applicable here.
Legal principles established
#- The six-month time limit in section 9(3) of the Law Reform Act is absolute and cannot be enlarged under Order 49 rule 5 of the Civil Procedure Rules.
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- not stated in the judgment; the appeal is against refusal/interpretation of leave under section 9(3) of the Law Reform Act Cap 26
Relief refused
#The appellant's appeal seeking to enlarge time beyond the six-month statutory limit
The prohibition in section 9(3) is absolute and cannot be overridden by procedural rules permitting enlargement of time
Costs
The appeal fails and is dismissed with costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We have no doubt that the prohibition is absolute and any other interpretation or view of the particular provision would be doing violence to the very clear provision of subsection (3) of section 9 of the Law Reform Act.
The prohibition is statutory and is not therefore challengeable under procedural provisions of the Civil Procedure Rules, more specifically order 49 rule 5 which permits for enlargement of time.
The views of Hancox JA in which he leaned towards a liberal construction were not essential to the decision, were not expressly shared by the majority and were based on the rules of the Supreme Court of England which do not automatically apply to this jurisdiction.
In the result the appeal fails and is dismissed with costs. That is the order of the court.
Issues in the judgment
#The judgment does not state the case title, appeal number, the decision appealed from, or the parties' names, limiting identification of the matter.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ako v Special District Commissioner Kisumu & another (Civil Appeal 27 of 1989) [1989] KECA 50 (KLR)", Case Analysis (1989). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1989/50/eng@1989-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.