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Court of AppealDismissedNot stated in the judgment

MACHARIA KABURU vs BETH WANJIRU KARIMIRA [1990] KECA 24 (KLR)

Court of Appeal of Kenya
27 June 1990
360 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 was a single-judge application under Rule 4 of the Court of Appeal Rules seeking an extension of the time limited by Rule 74 for lodging a notice of intended appeal from a ruling of the superior court dated 22nd July 1988. The application was filed on 15th September 1989, a delay of more than one year. The applicant explained the delay by an alleged disagreement with his then advocates, Kamere & Co. The respondent filed two replying affidavits demonstrating that the applicant's counsel had in fact continued to act after the ruling, filing an application for review on 15th August 1988 and an application for stay of execution and injunction on 7th November 1988. Counsel for the respondent therefore submitted that the decision to appeal was an afterthought and that the delay was not attributable to any disagreement with previous counsel. The judge also examined the record and noted that the proceedings below concerned an arbitration award; the applicant's application to set the award aside was dismissed, and instead of appealing he pursued review and stay, only deciding to appeal after more than a year. Considering all the circumstances and the nature of the matter, the court held that its discretion should not be exercised in the applicant's favour. The application was refused and dismissed with costs on 27th June 1990.

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 an extension of time to lodge a notice of intended appeal out of the period limited by Rule 74
  2. 2.Whether the alleged disagreement between the applicant and his former advocate provided a sufficient explanation for the delay

Key legal issues

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01

Sufficiency of the explanation for inordinate delay in filing a notice of appeal

Holding

The application was refused because the alleged disagreement with the former advocate did not cause the delay; counsel in fact continued to act by filing a review application and an application for stay of execution and injunction after the ruling

Reasoning

The judgment records that after the ruling of 22nd July 1988, Kamere & Co. continued to act for the applicant, filing an application for review on 15th August 1988 and for stay of execution and injunction on 7th November 1988. The respondent contended the decision to appeal was an afterthought. The court also noted the proceedings concerned an arbitration award whose setting aside had been dismissed, and that the choice to appeal came over a year later. On all the circumstances the discretion was withheld.

p. 1
02

Delay of more than one year in seeking extension of time

Holding

The application, filed on 15th September 1989 against a ruling of 22nd July 1988, involved a delay of more than one year, which weighed against the exercise of discretion in the applicant's favour

Reasoning

The court observed that the application itself was filed more than a year after the ruling, and that the applicant, rather than appealing the dismissal of his application to set aside the arbitration award, pursued review and stay. The cumulative delay and the nature of the matter led the single judge to decline to exercise the discretion in the applicant's favour and to dismiss the application with costs.

p. 1

Legal principles established

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  • The discretion to extend time for lodging a notice of appeal will not be exercised in favour of an applicant who offers an explanation for delay that is contradicted by the record, particularly where counsel continued to act after the decision sought to be appealed

Court orders

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  1. 1.The application for extension of time 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.

majority

Wrote the judgment

On appeal from
The superior court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time under Rule 74)

Relief refused

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Extension of time to file notice of intended appeal

The delay exceeded one year and was not attributable to the alleged disagreement with previous counsel, who continued to act for the applicant after the ruling

p. 2

Costs

The application is 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.

Upon consideration of all the circumstances and the nature of the matter. I am of the view that the discretion of the court should not be exercised in favour of the applicant and I refuse to do so.
p. 2Refusal of discretion to extend time
Accordingly I refuse the application and dismiss it with costs.
p. 2Final orders - dismissal with costs
The learned counsel for the Respondent therefore submitted that the decision to appeal was an after thought and the delay to file the Notice of Appeal was not due to the alleged disagreement between the applicant and his previous counsel.
p. 1Respondent's position on delay

Issues in the judgment

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minor

The parties, the case number and the superior court case details are not identified by name in the judgment; parties are referred to only as 'the applicant' and 'the Respondent', and the lower court is referred to generically as 'the superior court'

minor

The judgment contains typographical errors in the original text ('an0 affidavit has been sworn tot he effect', 'the applicant a review and stay')

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, "MACHARIA KABURU vs BETH WANJIRU KARIMIRA [1990] KECA 24 (KLR)", Case Analysis (1990). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/24/eng@1990-06-27

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