KITALE ELGON CO-OPERATIVE UNION LIMITED,MICHAEL F.C. KITIYO & JOHN CHEPSIGOR vs SETH NYAWARE OMAMO & AGRICULTURAL FINANCE CO-OPERATION [2000] KECA 289 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend appeal filing deadlines because the applicants waited three months without explaining the delay.
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 applicants should be granted an extension of time under rule 4 of the Court of Appeal Rules to file the notice of appeal and the record of appeal out of time.
- 2.Whether the delay of approximately three months in filing the application, after the appeal was struck out on 7 December 1998, was inordinate and whether it was explained.
- 3.Whether an extension of time to serve the notice of appeal on the first defendant's advocate, raised only in the supporting affidavit and not prayed for in the notice of motion, could be granted.
- 4.Whether the applicants came to court with clean hands in seeking the exercise of the court's discretion.
Key legal issues
#Whether the delay of approximately three months in filing the rule 4 application, after the applicants' appeal was struck out, was inordinate and unexplained so as to disentitle them to an extension of time.
Yes. The delay was inordinate and wholly unexplained. Even allowing for the Christmas Vacation, some seventy days were unaccounted for, and a further twenty-one days taken after the decree issued on 17 February 1999 were also unexplained. The extension sought was refused and the application dismissed with costs.
The Judge adopted the settled principles in Muchira and Samken: rule 4 confers an unfettered discretion subject to fairness to both sides, but extension is not granted for the asking, and a long delay or inaction demands some explanation or material to enable the judge to exercise the discretion. The application was filed about three months after the appeal was struck out; the supporting affidavit offered no explanation for the delay or for the additional twenty-one days after the decree issued on 17 February 1999.
Whether an extension of time to serve the notice of appeal on the first defendant's advocate, raised only in the supporting affidavit and not prayed for in the notice of motion, could be granted.
No. The relief could not be granted: it was not prayed for in the notice of motion nor was amendment sought; the failure of the main application left no foundation for it; it was an afterthought unsupported by any affidavit from the advocate concerned; and the applicants came with unclean hands. That limb was dismissed with costs to the respondents.
The court kept the two reliefs in the notice of motion distinct from the further relief surfaced in the supporting affidavit. Four grounds defeated the latter: absence of a prayer in the motion and no application to amend; the collapse of the main extension application removing the foundation for ancillary relief; its character as an afterthought, contradicted by the notice of appeal itself, which stated an intention to serve M. M. Ombogo & Company, advocates for the plaintiff Seth Nyamwera Omamo, rather than the first defendant's advocate; and the absence of any affidavit from that advocate, compounded by the applicants' unclean hands.
Whether the applicants came to court with clean hands in seeking the exercise of the court's discretion.
They did not. Having invoked the court's discretion, the applicants came with unclean hands and were required to fail on that limb, which was also dismissed with costs to the respondents.
Because the applicants sought an exercise of the court's discretion, their conduct was material. They attempted, through the supporting affidavit, to obtain service of the notice of appeal on an advocate whom the notice of appeal itself showed was never intended to be served, the notice having named M. M. Ombogo & Company, acting for the plaintiff, as the intended recipient. That attempt, together with the unexplained delay, disentitled them to the discretionary relief they sought.
Legal principles established
#- Rule 4 confers an unfettered discretion subject to the requirements of fairness to both sides, but it does not empower the court to grant an extension of time merely for the asking; the interests of the respondent must be considered (principle adopted from Muchira with this Court's express agreement).
- Where there is a long delay or inaction of the order of three months, the applicant must furnish some kind of explanation or material to enable the judge to exercise the rule 4 discretion (principle adopted from Samken and applied by this Court).
- An applicant whose appeal has been struck out is under a duty to move with speed and alacrity in seeking a fresh extension of time (principle adopted from Muchira with this Court's express agreement).
- Relief not prayed for in the notice of motion cannot be granted on the strength of the supporting affidavit alone, where no amendment of the motion was sought.
- A party who invokes the court's discretion must come with clean hands; unclean hands disentitle the applicant to the discretionary relief.
Court orders
#- 1.The application for extension of time to file the notice of appeal and the record of appeal is dismissed with costs to the respondents.
- 2.The relief sought in the supporting affidavit for extension of time to serve the notice of appeal on the first defendant's advocate is refused, and that limb of the application is also dismissed with costs to the respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules - application to a single Judge of the Court of Appeal for extension of time to file a notice of appeal and a record of appeal
Relief refused
#Extension of time to file the notice of appeal out of time
The delay of about three months since the appeal was struck out was inordinate and wholly unexplained; the rule 4 discretion is not granted for the asking.
Extension of time to file the record of appeal
The same inordinate and unexplained delay; the supporting affidavit left the delay wholly unexplained, including the further twenty-one days taken after the decree issued on 17 February 1999.
Extension of time to serve the notice of appeal on the first defendant's advocate (raised only in the supporting affidavit)
Not prayed for in the notice of motion and no amendment sought; no foundation once the main application failed; an afterthought unsupported by any affidavit from that advocate; the notice of appeal itself showed service was intended on the plaintiff's advocates; and the applicants came with unclean hands.
Costs
The application was dismissed with costs to the respondents on both limbs - the main application ('I dismiss it with costs') and the limb founded on the supporting affidavit ('their application is on this limb also dismissed with costs to the respondents').
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.
Whilst rule 4 of the Rules of this Court gives me unfettered discretion (subject to requirements of fairness to both sides) to extend time, it does not give me power to grant such extension for the asking.
We think it is now settled that where there is such a long delay or inaction or whatever else it may be called, there ought to be some kind of explanation or material to enable the judge to exercise the discretion given by rule 4.
Applying these principles, I am satisfied that there is inordinate delay which the supporting affidavit leaves wholly unexplained.
This relief cannot be granted since it is not prayed for in the notice of motion nor was its amendment sought to include such a prayer.
In these circumstances, I must exercise my discretion in refusing to the applicants the extension they seek and that being my view of the matter, this application fails and I dismiss it with costs.
The applicants must fail on this limb for all these four reasons and their application is on this limb also dismissed with costs to the respondents.
Issues in the judgment
#The opening narrative contains corrupted or garbled text, apparently a typographical or OCR artefact, which obscures the sentence describing the length of the delay.
The judgment nowhere states the names of the applicants or of the first and second respondents, nor the number of the present application; the parties are identified only by role and by their counsel.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KITALE ELGON CO-OPERATIVE UNION LIMITED,MICHAEL F.C. KITIYO & JOHN CHEPSIGOR vs SETH NYAWARE OMAMO & AGRICULTURAL FINANCE CO-OPERATION [2000] KECA 289 (KLR)", Case Analysis (2000). Not stated in the judgment (related appeal: Civil Appeal No. 109 of 1998). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/289/eng@2000-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.