Cosmas Kyalo Muthembwa v Eunice M. Kyalo [2001] KECA 300 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a litigant whose appeal had been struck out to start afresh, ruling that a 24-day delay was not fatal.
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 applicant's explanation for non-compliance with rule 81(2) - that he was acting in person and ignorant of the Rules - was genuine, given that the notice of appeal showed he was still represented by his former counsel.
- 2.What period is relevant when assessing delay in a fresh application for extension of time made after the previous appeal has been struck out.
- 3.Whether the 24-day period between the striking out of the appeal on 27th June 2000 and the filing of the motion on 21st July 2000 amounted to inordinate delay.
- 4.Whether the court should exercise its discretion under rule 4 to extend time for lodging the notice of appeal and filing the memorandum and record of appeal.
Key legal issues
#Whether the applicant's explanation for the original non-compliance with rule 81(2) was genuine.
The court declined to determine the genuineness of the explanation for the original non-compliance, holding that the prior default had already been sufficiently punished by the striking out of the appeal, which compelled the applicant to start afresh; the disputed material therefore did not affect the decision.
The respondent, through Mr. Ranji, urged that the plea of ignorance was false because the notice of appeal showed the applicant was still represented by his former counsel, and the letter of 2nd July 1999 was never availed to the court. Owuor JA sidestepped the dispute: whatever mistakes the applicant made had already attracted the drastic sanction of striking out, forcing him to begin the process anew. The credibility of the original explanation was therefore immaterial to the fresh extension application.
The period to be assessed in a fresh extension application made after a previous appeal has been struck out.
Only the period between the striking out of the previous appeal and the filing of the fresh motion is considered; earlier periods of non-compliance fall away. Here the relevant period was the 24 days between 27th June 2000 and 21st July 2000.
Adopting Omolo JA's statement in George William Engineering Company Ltd v Leonard Kimeu Kimathi, with which the court expressly agreed, the inquiry is confined to the interval between the striking out of the earlier appeal and the filing of the new motion. The respondent computed that interval as 24 days and attacked it as unexplained; the court treated that interval, not the original rule 81(2) default, as the delay requiring explanation.
Whether a 24-day delay, with the explanation that counsel was still taking instructions, amounted to inordinate delay.
No. The court found the explanation genuine and held that 24 days did not amount to inordinate delay, and therefore exercised its unfettered discretion under rule 4 in the applicant's favour.
The respondent asserted that no credible explanation had been given and that the applicant failed to move with speed and alacrity after the striking out. The supporting affidavit deponed that counsel was still taking instructions from the applicant. On that material the court was unable to find the explanation lacked merit or was not genuine, and concluded the 24-day period did not constitute inordinate delay barring the exercise of discretion.
Legal principles established
#- Where an appeal has been struck out for non-compliance with the Court of Appeal Rules, the prior default is treated as sufficiently punished by the striking out; the applicant may start the appeal process afresh, and the earlier non-compliance does not bar a fresh extension application.
- In a fresh application for extension of time made after a previous appeal has been struck out, the only period to be considered in assessing delay is the period between the striking out of the previous appeal and the filing of the new motion.
- A short period of delay accompanied by a genuine explanation does not amount to inordinate delay and will not defeat an extension of time; the discretion under rule 4 is unfettered.
Court orders
#- 1.Time extended for lodging the notice of appeal against the judgment of Hayanga J dated 2nd July 1999 - the notice of appeal to be filed and served within 7 days from 6th April 2001.
- 2.Time extended for filing the memorandum of appeal and record of appeal - to be filed within 14 days from the date of filing the notice of appeal.
- 3.Costs of the application awarded to the respondent.
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 (extension of time), exercised by a single Judge of Appeal
Relief refused
#Extension of time by 21 days from the date of the order as prayed was not granted in those terms; the court granted both prayers but substituted its own timelines (7 days for filing and serving the notice of appeal; 14 days for filing the memorandum and record of appeal).
The court exercised its unfettered discretion under rule 4 and fixed the timelines it considered appropriate rather than the 21 days sought.
Costs
Costs of this application shall be to the respondent.
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.
In the result, I grant both prayers in the Notice of motion save that the Notice of appeal (a very simple document indeed) shall be filed and served within 7 days from today's date, while the memorandum of appeal and record of appeal shall be filed within 14 days from the date of filing the Notice of appeal.
Costs of this application shall be to the respondent.
whatever past mistakes or sins committed by the applicant by not complying with rule 81(2) were sufficiently punished by the drastic step that the Court took by striking out the appeal and thereby compelling the applicant to start the process afresh, if he was still desirous to mount his appeal
the only point I have to consider when deciding on which my direction ought to go is the period between the 31st October, 1998 when the previous appeal was struck out and the 5th February, 1998 when this motion was filed
Therefore the period of 24 days does not amount to inordinate delay as to make me not exercise my unfettered discretion so granted to me by rule (4) in favour of the applicant.
Issues in the judgment
#The quoted extract from George William Engineering contains internally inconsistent dates - the motion filing date (5th February, 1998) precedes the striking-out date (31st October, 1998), suggesting a typographical error in the quoted passage.
The respondent is not named anywhere in the judgment and no case number is stated for the motion, so the parties and file cannot be fully identified from the text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cosmas Kyalo Muthembwa v Eunice M. Kyalo [2001] KECA 300 (KLR)", Case Analysis (2001). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/300/eng@2001-04-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.