Ayub Wangondu Kibii v National Industrial Credit Bank Ltd
The bottom line
#Kenya's Court of Appeal threw out a late appeal because the applicant missed deadlines, waited unnecessarily for paperwork, and offered no good excuse.
What this practically means
#Executive summary
#Key legal issues
#Whether leave should be granted under rule 4 to file and serve a Notice of Appeal and Record of Appeal out of time
The application was dismissed; the applicant breached rule 74(2) by filing and serving the Notice of Appeal out of time without leave, gave no satisfactory explanation for subsequent delay, and produced no evidence of substantial points of law
The applicant filed the Notice of Appeal on 25th July 2001, out of time and without leave, and served it only on 7th August 2001, again out of time. The letter bespeaking proceedings was not copied to the respondent. After receiving proceedings on 28th November 2001, the applicant waited for the Certificate of Delay unnecessarily, then delayed further before lodging the application on 22nd February 2002. Counsel asserted substantial points of law but did not annex the ruling to substantiate the claim. The Court found no basis to exercise its discretion.
Whether waiting for a Certificate of Delay justifies delay in filing an appeal
No; a certificate of delay is not a primary document under rule 85(1) and its absence does not stop an applicant from filing an appeal
The applicant claimed he could not lodge the appeal until he received a copy of the Certificate of Delay on 25th January 2002. The Court rejected this as a justification, holding that a certificate of delay is not a primary document within rule 85(1), so nothing prevented the applicant from filing his appeal before receiving a copy of it.
Legal principles established
#- A certificate of delay is not a primary document within the meaning of rule 85(1) of the Court of Appeal Rules, so an applicant need not wait for a copy of it before filing an appeal
- An applicant seeking extension of time must demonstrate a basis for the exercise of the Court's discretion, including compliance with the Rules and evidence of substantial points of law, failing which the application will be dismissed
Court orders
#- 1.The application under rule 4 of the Court of Appeal Rules is dismissed
- 2.Costs to the respondent assessed at Shs 5,000/-, to be paid within 14 days, and in default execution to issue
- On appeal from
- High Court of Kenya (Commissioner of Assize)
- Not stated in the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for leave to file and serve Notice of Appeal and Record of Appeal out of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ayub Wangondu Kibii v National Industrial Credit Bank Ltd", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/180/eng@2002-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.