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Court of AppealDismissedAppeal No. 53/93 (application under rule 4 of the Court of Appeal Rules)

KENINDIA ASSURANCE CO LTD vs PATRICK MUTURI [1999] KECA 18 (KLR)

Court of Appeal of Kenya
9 August 1999
284 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant gave no explanation for missing required documents.

What this practically means

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Executive summary

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This was an application under rule 4 of the Court of Appeal Rules seeking an extension of time to file a notice of appeal. The applicant's appeal, No. 53/93, had been struck out on 27th July 1999 for failure to comply with rule 85(1)(c), in that primary documents by way of pleadings were not included in the record. Lakha JA, sitting singly, held that there was no material before the court on which the discretion to extend time could be exercised. Relying on the Privy Council decision in Ratnam v Kumarasamy and on Balcombe LJ and Mann LJ in Savill v Southend Health Authority, the court reaffirmed that there must be some material before the court to enable its discretion to be exercised. The applicant did not rely on mistake, accident or inadvertence, and offered no explanation for the non-compliance or for the failure to trace the missing documents earlier. The court held that once there is non-compliance, the burden rests on the party seeking indulgence to satisfy the court why the discretion should nevertheless be exercised in its favour, and articulated the rule that where there is no explanation, there shall be no indulgence. The application was accordingly dismissed with costs. The decision binds the High Court and subordinate courts on the burden and explanation requirements for extension-of-time applications.

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 had made out a case for the exercise of the Court's discretion under rule 4 to extend time, notwithstanding the striking out of the appeal for non-compliance with rule 85(1)(c)

Key legal issues

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01

Whether the discretion to extend time could be exercised on the material before the court

Holding

The discretion could not be exercised because the applicant offered no material, explanation, or basis such as mistake, accident or inadvertence for the non-compliance with rule 85(1)(c).

Reasoning

The applicant's appeal had been struck out for failure to include primary documents in the record. The court found no material on which to exercise its discretion, citing Ratnam v Kumarasamy and Savill v Southend Health Authority. The applicant did not rely on mistake, accident or inadvertence, and gave no explanation why the documents could not be traced earlier. The burden of justifying the indulgence rested on the applicant and was not discharged.

p. 2

Legal principles established

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  • Once there is non-compliance with the Court's rules, the burden lies on the party seeking indulgence to satisfy the court why the discretion to extend time should nevertheless be exercised in its favour; absent an explanation, no indulgence will be granted.
  • There must be some material before the court to enable its discretion to extend time to be exercised.

Court orders

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  1. 1.Refusal to exercise any discretion to extend time as prayed
  2. 2.Dismissal of the application with costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time)

Relief refused

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Extension of time to file a notice of appeal

No material or explanation was offered for the non-compliance with rule 85(1)(c); the burden on the applicant was not discharged

p. 2

Costs

The application is dismissed with costs (costs awarded against the applicant).

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.

In my judgment, once there is non-compliance the burden is on the party seeking indulgence to satisfy the court why the discretion should nevertheless be exercised in his favour.
p. 2Burden on applicant for extension of time
The rule is where there is no explanation, there shall be no indulgence.
p. 2No extension of time without explanation
In the result, I refuse to exercise any discretion to extend time as prayed. Accordingly, the application is dismissed with costs.
p. 2Final orders - dismissal of the application

Issues in the judgment

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minor

The judgment does not name the parties or the respondent; the applicant is identified only by reference to Appeal No. 53/93.

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, "KENINDIA ASSURANCE CO LTD vs PATRICK MUTURI [1999] KECA 18 (KLR)", Case Analysis (1999). Appeal No. 53/93 (application under rule 4 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/18/eng@1999-07-16

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