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Court of AppealPartially AllowedCivil Application No. NAI. 173 of 1999 (67/99UR)· [2000] KECA 377 (KLR)

First America Bank of Kenya Limited & 1 other v Grandways Venture Limited

Court of Appeal of Kenya
21 January 2000
1,122 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that missing appeal deadlines requires sworn evidence explaining the delay — vague claims of 'mistake' will not save a late appeal.

What this practically means

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Executive summary

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This was a reference under rule 54 of the Court of Appeal Rules against the decision of a single Judge of Appeal (Owuor, J.A.) who, on 4 August 1999, extended time for the applicants to file a notice of appeal and record of appeal. The applicants' appeal had been struck out on 1 July 1999 for non-compliance with rule 85(1)(h) of the Rules because the record of appeal lacked a certified copy of the order appealed against. Before the single Judge it was urged that the omission was an honest mistake by the advocate, an explanation she accepted. On the reference, the full Court (Kwach, Lakha and Keiwua, JJ.A.) held that there was no material before the single Judge upon which she could exercise her discretion. Relying on the Privy Council decision in Ratnam v Cumarasamy and the English Court of Appeal decision in Savill v Southend Health Authority, the Court reaffirmed that rules of court must prima facie be obeyed and that an extension of time requires some material on which the court can exercise its discretion. There was no affidavit from the advocate alleged to have made the mistake and no explanation showing inadvertence or accident. The Court held that a party in default bears the burden of placing necessary and relevant material before the Court, a burden the applicants had not discharged. The reference was allowed with costs, the single Judge's order was set aside, and the applicants' Notice of Motion dated 20 July 1999 was dismissed with costs.

Key legal issues

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01

Whether an extension of time can be granted without material supporting the exercise of discretion

Holding

No; there must be material before the court upon which it can exercise its discretion, and the defaulting party bears the burden of providing it.

Reasoning

Adopting Ratnam v Cumarasamy and Savill v Southend Health Authority, the Court held that rules of court must prima facie be obeyed. A party in breach has no unqualified right to an extension of time. Here there was no affidavit from the advocate alleged to have made the mistake and no explanation for the omission, so the single Judge had no material on which to base her discretion.

p. 1
02

Whether the explanation for the default matters to the exercise of discretion

Holding

The Court will ordinarily take into account the explanation for the default; if the omission was deliberate rather than accidental, an extension is unlikely.

Reasoning

The Court stated that, as a matter of common sense though not a condition precedent, it would want an explanation of how the appeal became incompetent. If the omission was deliberate, extension would be unlikely. On the facts, there was no material showing inadvertence or accident, so the single Judge could not properly exercise her discretion.

p. 2

Legal principles established

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  • A party in default seeking an extension of time must place necessary and relevant material before the Court to justify the exercise of discretion in its favour; the burden lies on the defaulting party.
  • Rules of court must prima facie be obeyed, and extension of time requires some material on which the court can exercise its discretion.

Court orders

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  1. 1.The reference is allowed with costs
  2. 2.The order made by the learned single Judge extending time is set aside
  3. 3.Substituted therefor is an order dismissing with costs the applicants' Notice of Motion dated 20 July, 1999
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 23 of 1999
Jurisdiction invoked
Rule 54 of the Court of Appeal Rules (reference to the Court to vary, discharge or reverse the order of a single Judge)

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, "First America Bank of Kenya Limited & 1 other v Grandways Venture Limited", Case Analysis (2000). Civil Application No. NAI. 173 of 1999 (67/99UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/377/eng@2000-01-21

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