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Court of AppealDismissedCivil Appeal (Nakuru Chambers) No. 346 of 2000

John Kariuki Karanja & Samwel Ndegwa v Gladys Wanjiru Karuga [2001] KECA 250 (KLR)

Court of Appeal of Kenya
21 February 2001
362 words in judgment
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The bottom line

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The Court of Appeal refused to forgive a seven-month delay in filing an appeal, ruling that waiting for a Certificate of Delay was no excuse.

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 file a Record of Appeal against the judgment and decree of Rimita J of the High Court of Kenya at Nakuru delivered on 9th March 1998 in HCCC No. 529 of 1996. The applicants, John Karanja and Samwel Ndegwa, filed a Notice of Appeal and on 18th March 1998 applied for copies of the proceedings and judgment, which were furnished only on 12th April 2000. A Certificate of Delay was issued on 3rd August 2000, yet the application was not filed until 13th November 2000. The applicants' advocates contended they could not lodge the record without the Certificate of Delay. Kwach JA rejected this, holding that a Certificate of Delay is not a primary document within rule 85(1) of the Court of Appeal Rules and can always be included in a supplementary record of appeal. The delay of roughly seven months from April to November 2000 was therefore unexplained and inordinate. Although counsel for the respondent did not object to the application, the Judge held he was entitled to disregard that concession in exercising his discretion. The application was dismissed with no order as to costs. The decision is a useful authority on the limited relevance of Certificates of Delay and on the court's power to refuse extensions notwithstanding a respondent's lack of objection.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants should be granted an extension of time to file the Record of Appeal
  2. 2.Whether the delay from receipt of certified proceedings on 12th April 2000 to the filing of the application on 13th November 2000 was adequately explained

Key legal issues

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01

Whether the need for a Certificate of Delay justified the applicants' failure to lodge the record of appeal

Holding

No - a Certificate of Delay is not a primary document under rule 85(1) and can be included in a supplementary record, so its absence did not explain the delay

Reasoning

The applicants received copies of the proceedings and judgment on 12th April 2000 but took no steps until filing this application on 13th November 2000. Their advocates asserted they could not lodge the record without a Certificate of Delay, issued 3rd August 2000. The court rejected this as legally unsound because rule 85(1) does not require the COD as a primary document; it could have been added by supplementary record. The resulting seven-month delay was therefore unexplained and inordinate.

p. 2
02

Whether the respondent's lack of objection obliged the court to grant the extension

Holding

No - the court's discretion is not fettered by consent; where delay is inordinate and unexplained the court may disregard the respondent's concession

Reasoning

Although counsel for the respondent indicated she did not object to the application being granted, the single Judge held that an unexplained and inordinate delay justified refusing the extension notwithstanding that concession. The discretion under rule 4 is exercised judicially by the court, not by agreement of the parties, and consent cannot cure an unexplained inordinate delay.

p. 2

Legal principles established

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  • A Certificate of Delay is not a primary document required for lodging a record of appeal under rule 85(1) and may be included later in a supplementary record; its absence does not excuse delay in filing the record
  • Where the delay is inordinate and unexplained, the court may disregard a respondent's lack of objection and refuse extension of time

Court orders

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  1. 1.The application for extension of time to file the Record of Appeal is dismissed
  2. 2.No order as to costs

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nakuru
HCCC No. 529 of 1996
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

Relief refused

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Extension of time to file the Record of Appeal

The delay from 12th April 2000 to 13th November 2000 was inordinate and unexplained; the claim that a Certificate of Delay was needed before lodging the record was not a good reason

p. 2

Costs

No order as to costs - the application was dismissed 'with no order as to costs'

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.

a Certificate of Delay is not a primary document within the meaning of rule 85(1) of the Court of Appeal Rules and can always be included in a supplementary record of appeal
p. 2Certificate of Delay not a prerequisite to lodging a record of appeal
since the delay is quite inordinate I am entitled, in exercising my discretion, to disregard the indication by Miss Otieno, for the respondent, that she does not object to the application being granted
p. 2Court may refuse extension despite respondent's non-objection where delay is inordinate and unexplained
Accordingly, I decline to exercise my discretion in favour of the applicants and dismiss the application with no order as to costs.
p. 2Final orders - dismissal of the extension application

Issues in the judgment

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minor

The case title and party names in the header are partially illegible/garbled in the copy provided; the respondent's full name cannot be confirmed from the text

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 Kariuki Karanja & Samwel Ndegwa v Gladys Wanjiru Karuga [2001] KECA 250 (KLR)", Case Analysis (2001). Civil Appeal (Nakuru Chambers) No. 346 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/250/eng@2001-02-21

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