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Court of AppealDismissedNot stated in judgment

John Masitsa v Jonathan C. Songo [2000] KECA 175 (KLR)

Court of Appeal
22 May 2000
OKO. KWACH
203 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal in Kisumu refused to extend time to appeal because the applicant and his lawyer already knew the ruling date and chose not to attend.

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 extension of time to lodge a Notice of Appeal and a Record of Appeal against a ruling delivered by Tanui K on 28.4.99 in a review application. The applicant explained the delay by his absence from court when the ruling was delivered. Kwach JA accepted that the applicant may indeed have been absent on the delivery date, but held that this availed him nothing because both the applicant and his advocate had been present on 11.4.99 when the application was heard and the Judge had then reserved his ruling to 28.4.99. Having had knowledge of the delivery date, the applicant and his advocate chose not to attend, and the applicant could not thereafter plead ignorance. The court declined to exercise its discretion in the applicant's favour, dismissed the application, and awarded costs to the respondent. The judgment is short and contains no citation of authorities or statutes beyond the rule under which the application was brought. As a rule 4 decision, it does not disturb any decision below but simply refuses the procedural indulgence sought; its practical significance lies in confirming that a party with notice of a reserved ruling date cannot rely on non-attendance on that date to justify late filing of an appeal.

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 Appeal and a Record of Appeal against the ruling of Tanui K delivered on 28.4.99

Key legal issues

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01

Whether absence from court at delivery of a reserved ruling justifies extension of time to appeal

Holding

No - where the applicant and his advocate were present when the ruling date was reserved, they cannot claim ignorance of the delivery date, and the discretion to extend time will not be exercised in their favour

Reasoning

The applicant sought review before Tanui K. On 11.4.99 both the applicant and his advocate attended the hearing and the Judge reserved the ruling to 28.4.99. Having had notice of that date, their failure to attend did not excuse the delay in lodging a notice of appeal. The court therefore declined to exercise its discretion under rule 4 and dismissed the application with costs.

p. 1

Legal principles established

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  • A party who had knowledge of the date fixed for delivery of a ruling cannot later plead ignorance of that date as a ground for extending time to appeal

Court orders

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  1. 1.The applicant's application for extension of time is dismissed with costs to the respondent

The bench

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

OK
majority

Wrote the judgment

On appeal from
High Court
Not stated in judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

Relief refused

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Extension of time to lodge a Notice of Appeal and a Record of Appeal

The applicant and his advocate knew the date of delivery of the ruling but chose not to attend; ignorance cannot be pleaded

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 cannot now turn round and plead ignorance. I refuse to exercise my discretion in favour of the applicant and dismiss his application with costs to the respondent.
p. 2Final orders - dismissal of extension of time application
So, both the applicant and his Advocate had knowledge of the date of delivery of the ruling. They chose not to attend on 28.4.99 to take the ruling.
p. 1Knowledge of ruling date defeats plea of ignorance

Issues in the judgment

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minor

The delivery date line contains an internal contradiction, stating both May and March

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, "John Masitsa v Jonathan C. Songo [2000] KECA 175 (KLR)", Case Analysis (2000). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/175/eng@2000-03-22

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