Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealOtherNot stated in the judgment

MR. & MRS. DOROTHY S. ANDREAS v MICHAEL KIVAI [2000] KECA 131 (KLR)

Court of Appeal of Kenya
16 February 2000
EOE. Owuor
520 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out irrelevant letters from an affidavit, confirming extension-of-time applications must focus only on explaining appeal delays.

What this practically means

#

Executive summary

#
This is a short interlocutory ruling by Owuor, JA, delivered at Nairobi on 16th February 2000, in the course of hearing an application under rule 4 of the Court of Appeal Rules for extension of time to lodge an appeal out of time. Before the substantive hearing, counsel for the respondents, Mr. Kasyoka, was granted leave to object to certain documents in the record of the Notice of Motion: letters exchanged between Mr. Owuor, counsel for the applicants, and Mr. Ngombo, their former counsel, annexed to a further affidavit sworn on 13th July 1999 as Exh. MO2, MO3 and MO 3A. The objection rested on two grounds: the letters were written after the ruling of 22nd July 1998 which was the subject of the intended appeal, and they offended rule 85(j) of the Rules. Counsel for the applicants contended that rule 85(j) applies only to records of appeal, not to records of applications. The court expressly declined to decide the scope of rule 85(j) and instead determined the matter on relevance. Holding that the purpose of a supporting affidavit is to enable the court to exercise its discretion to extend time, the court found the letters were not material before the superior court and did not explain the delay, and ordered them struck out. No costs order was made and no authority was cited.

Questions the Court framed

#

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

  1. 1.Whether the letters exchanged between Mr. Owuor and Mr. Ngombo, annexed to the further affidavit of Mr. Owuor as Exh. MO2, MO3 and MO 3A, are relevant and should form part of the record of the Notice of Motion
  2. 2.Whether rule 85(j) of the Court of Appeal Rules applies to records of Notices of Motion as opposed to records of appeal

Key legal issues

#
01

Relevance of post-ruling correspondence annexed to a supporting affidavit in an extension-of-time application

Holding

The letters were struck out because they were written after the ruling appealed from, were not material before the superior court, and did not explain the delay in filing the appeal.

Reasoning

The purpose of an affidavit in support of an extension-of-time application is to enable the judge to exercise the discretion to extend time. The impugned letters were written after the superior court's ruling of 22nd July 1998, in which the Judge was satisfied the applicants had been notified of the hearing. The letters neither formed part of the record of proceedings below nor explained the delay, so they had no rightful place in the application.

p. 2
02

Applicability of rule 85(j) of the Court of Appeal Rules to records of Notices of Motion

Holding

The court expressly declined to decide whether rule 85(j) applies to records of Notices of Motion, resting its decision instead on relevance.

Reasoning

Counsel for the applicant argued that rule 85(j) governs only records of appeal, not records of applications, while counsel for the respondents relied on it. The court assumed, without deciding, that the affidavit was properly before it, and determined the objection on the narrower ground of relevance of the annexed documents.

p. 2

Legal principles established

#
  • Documents that were not material before the superior court and do not explain the delay in filing an appeal are not relevant to an extension-of-time application and may be struck out from the record.

Court orders

#
  1. 1.The letters exchanged between Mr. Owuor and Mr. Ngombo annexed to the further affidavit of Mr. Owuor (Exh. MO2, MO3, MO 3A) are struck out from the record of the Notice of Motion

The bench

#

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

EO
majority

Wrote the judgment

On appeal from
High Court (superior court)
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application for extension of time to lodge an appeal out of time)

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.

I am satisfied that the documents that are attached to the further affidavit of Mr. Owuor cannot find their rightful place in this application.
p. 2Striking out irrelevant documents from the record
These documents were not material before the learned Judge of the superior court, neither do they explain the delay in the filing of the appeal. To that extent, they are not relevant to this application and shall be accordingly struck out.
p. 3Final orders - striking out of annexures
The objective of the affidavit sworn in support of the application is to satisfy me and enable me to exercise my discretion so as to extend time for the applicants to be able to lodge their appeal out of time.
p. 2Purpose of supporting affidavit in extension-of-time applications

Issues in the judgment

#
minor

The judgment does not state the case number, the names of the parties, or the neutral citation; the ruling is identified only by its subject matter and date.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "MR. & MRS. DOROTHY S. ANDREAS v MICHAEL KIVAI [2000] KECA 131 (KLR)", Case Analysis (2000). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/131/eng@2000-03-03

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