MARIAMBHAI SHAIRHUSSEIN NOORBHAI,FATMABHAI TAIBALI ABDULHUSSEIN NOORBHAI & GULAMALI GULAM HUSSEIN SHEIKH vs DECHE CHINYAKA [2001] KECA 133 (KLR)
The bottom line
#Kenya's Court of Appeal blocked a late appeal because the litigants first tried to cancel the ruling instead of appealing on time.
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 to file a Notice of Appeal out of time against the ruling and order of Hayanga, J. dated 18th May, 2000.
- 2.Whether the applicants' conduct - applying to set aside the decision instead of lodging a notice of appeal and, upon failure of that application, returning to seek an extension of time - amounted to an abuse of the process of the Court.
- 3.Whether the delay in bringing the extension-of-time application was satisfactorily explained.
Key legal issues
#Whether extension of time should be granted where the applicant first pursued a set-aside application instead of appealing and then returned to the Court of Appeal after that application failed.
The application was dismissed. The applicants' choice to apply to set aside the decision of 18th May, 2000 as allegedly ex parte, rather than lodge a notice of appeal, and their return to seek extension of time only after that application was dismissed on 17th July, 2000, was a blatant abuse of the process of the Court which disentitled them to the discretion.
Instead of lodging a notice of appeal against the ruling of Hayanga, J. of 18th May, 2000, the applicants applied to the superior court to set it aside on the basis that it was made ex parte. The court found the decision was not ex parte; the applicants' own advocate simply did not attend court. That set-aside application was dismissed on 17th July, 2000. Only then did the applicants seek to appeal against the original decision. Kwach, J.A. treated this sequence as a blatant abuse of the process of the Court and declined to exercise his discretion in their favour.
Whether the delay in bringing the extension-of-time application was excusable.
No. The delay in bringing the application was not explained at all, which independently justified refusing the extension of time.
Beyond the abusive course of conduct, the Court identified the total absence of any explanation for the delay as a separate and sufficient ground for refusing the discretion. The applicants offered no account for the time elapsed between the decision of 18th May, 2000, the dismissal of the set-aside application on 17th July, 2000, and the present application, so the threshold for invoking the Court's discretion to extend time was not met.
Legal principles established
#- A litigant who, instead of lodging a notice of appeal, applies to set aside the decision below and, upon failure of that application, seeks extension of time to appeal, abuses the process of the Court and may be denied the extension.
- An applicant for extension of time to appeal must explain the delay; a delay that is not explained at all justifies refusal of the discretion.
- A decision is not rendered ex parte merely because the advocate retained by the party did not attend court.
Court orders
#- 1.The application for extension of time to file a Notice of Appeal out of time is dismissed.
- 2.Costs of the application are awarded to the respondent, assessed at KShs. 10,000/-, to be paid within ten (10) days, and in default execution to issue.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 161 of 1997
- Jurisdiction invoked
- A single Judge of the Court of Appeal in chambers seised of an application for extension of time to file a Notice of Appeal out of time under the Court of Appeal Rules; the ruling itself cites no specific rule, referring only to section 8 of the Land Disputes Tribunal Act, 1990 when describing the procedure for settling the underlying dispute.
Relief refused
#Extension of time to file a Notice of Appeal out of time against the ruling and order of Hayanga, J. dated 18th May, 2000 in H.C.C.C. No. 161 of 1997.
The applicants' course of conduct - applying to set the decision aside instead of appealing and, having failed, seeking to appeal out of time - was a blatant abuse of the process of the Court, and the delay in bringing the application was not explained at all.
Costs
Costs of the application to the respondent, assessed at KShs. 10,000/-, to be paid within ten (10) days, and in default execution to issue.
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 regard the conduct of the applicants as a blatant abuse of the process of this Court.
The decision was not made ex parte; what happened was that the Advocate retained by the applicants did not attend court.
Apart from that, the delay in bringing the application has not been explained at all.
Section 8 of the Land Disputes Tribunal Act, 1990 sets out in simple and clear language the procedure for settling disputes.
In the circumstances, I decline to exercise my discretion in favour of the applicants and dismiss this application with costs to the respondent which I assess at KShs. 10,000/- to be paid within ten (10) days and in default execution to issue.
Issues in the judgment
#The fourth applicant is named only as 'Sheikh' in the cause title, with no other name given; the party name appears incomplete or truncated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MARIAMBHAI SHAIRHUSSEIN NOORBHAI,FATMABHAI TAIBALI ABDULHUSSEIN NOORBHAI & GULAMALI GULAM HUSSEIN SHEIKH vs DECHE CHINYAKA [2001] KECA 133 (KLR)", Case Analysis (2001). Civil Application No. NAI. 203 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/133/eng@2001-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.