MR. & MRS. DOROTHY S. ANDREAS v MICHAEL KIVAI [2000] KECA 378 (KLR)
The bottom line
#Kenya's Court of Appeal struck out letters attached to an extension-of-time application because they did not explain the filing 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 letters exchanged between the applicants' current counsel (Mr. Owuor) and former counsel (Mr. Ngombo), annexed to the further affidavit sworn on 13th July 1999 as Exh. MO2, MO3 and MO3A, are relevant and should form part of the record of the rule 4 application
- 2.Whether rule 85(j) of the Court of Appeal Rules, governing the contents of a record of appeal, applies to the record of a notice of motion (raised by the parties but expressly left undecided)
Key legal issues
#Whether the letters exchanged between the applicants' current and former counsel, annexed to a further affidavit in support of a rule 4 extension-of-time application, are relevant and should form part of the record
The letters were struck out as irrelevant: they were written after the ruling of 22nd July 1998 under challenge, were not material before the learned Judge of the superior court, and did not explain the delay in filing the appeal
The court reasoned that the affidavit in support of a rule 4 application exists to satisfy the judge and enable the exercise of the discretion to extend time for lodging the appeal. The impugned letters were written after the superior court ruling of 22nd July 1998, in which the Judge had found the applicants sufficiently notified of the hearing. The correspondence merely sought confirmation from former counsel whether he had been notified of the hearing; it formed no part of the record below and shed no light on the delay. Lacking materiality and relevance, the documents could not remain on the record.
Whether rule 85(j) of the Court of Appeal Rules, regulating what may be contained in a record of appeal, applies to the record of a notice of motion
Expressly left undecided; the court determined the objection on relevance alone, assuming without deciding that the affidavit was properly before it
Counsel for the respondents objected that the letters offended rule 85(j) of the Court of Appeal Rules, which regulates the contents of the record of appeal. Counsel for the applicants countered that the rule applies only to records of appeal and not to records of notices of motion. The court declined to resolve this question of the rule's scope, choosing instead to test the documents against relevance, which it treated as dispositive of the objection. The scope of rule 85(j) in relation to interlocutory records therefore remains open and forms no part of the ratio.
Legal principles established
#- In an application for extension of time to appeal, annexures to a supporting affidavit must be relevant to the discretion being exercised; documents that were not material before the superior court and do not explain the delay in filing the appeal are irrelevant and liable to be struck out
- The affidavit sworn in support of an extension-of-time application is directed to satisfying the court and enabling it to exercise its discretion to extend time for lodging the appeal out of time
Court orders
#- 1.The letters exchanged between Mr. Owuor and Mr. Ngombo, annexed to the further affidavit sworn on 13th July 1999 and marked Exh. MO2, MO3 and MO3A, are struck out from the record of the application as irrelevant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court (referred to in the ruling as 'the superior court')
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules – application for extension of time to lodge an appeal out of time, heard by a single Judge of Appeal
Relief refused
#Retention of the letters (Exh. MO2, MO3 and MO3A) as annexures to the further affidavit in support of the rule 4 extension-of-time application
The documents were written after the ruling of 22nd July 1998, were not material before the learned Judge of the superior court, and did not explain the delay in filing the appeal, so they were irrelevant to the discretion whether to extend time
Costs
No costs order made – the ruling is silent on costs
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.
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.
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.
I am satisfied that the documents that are attached to the further affidavit of Mr. Owuor cannot find their rightful place in this application.
Without deciding on whether rule 85(j) is applicable to Notice of motion or applications to this Court and assuming the affidavit filed herein is properly before the Court, I will now consider whether the documents are relevant and should form part of the affidavit.
Issues in the judgment
#The ruling as recorded contains no case caption, party names or case number; it opens directly with the hearing of the application, so the parties and the intended appeal cannot be identified from the text
Apparent transcription error in the passage agreeing with the objection – 'count of record' appears garbled (possibly 'counsel of record' or 'matter of record')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MR. & MRS. DOROTHY S. ANDREAS v MICHAEL KIVAI [2000] KECA 378 (KLR)", Case Analysis (2000). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/378/eng@2000-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.