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Court of AppealDismissedNot stated in the judgment· [2002] KECA 180 (KLR)

Ayub Wangondu Kibii v National Industrial Credit Bank Ltd

Court of Appeal of Kenya
3 June 2002
516 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was an application under rule 4 of the Court of Appeal Rules by Ayub Kibii seeking leave to file and serve a Notice of Appeal and Record of Appeal out of time, in respect of a decision of Commissioner of Assize Ransley delivered on 28th June 2001. The applicant, through counsel, filed a Notice of Appeal on 25th July 2001 in flagrant breach of rule 74(2) and without leave, and served it only on 7th August 2001, again out of time. The letter bespeaking copies of the proceedings and ruling was not copied to the respondent, as the respondent's replying affidavit sworn by Mr Eric Masese confirmed. After receiving the proceedings on 28th November 2001, the applicant waited for a copy of the Certificate of Delay, received on 25th January 2002, and only lodged the application on 22nd February 2002. Kwach JA held that a certificate of delay is not a primary document within rule 85(1), so its absence did not excuse the delay. Counsel's assertion that the intended appeal raised substantial points of law was unsupported because the ruling itself was not annexed. Finding the application utterly hopeless and there being no basis to exercise discretion in the applicant's favour, the Court dismissed the application with costs to the respondent assessed at Shs 5,000/-, payable within 14 days, in default of which execution to issue. The decision under review was not disturbed; this ruling concerned only the extension-of-time application.

Key legal issues

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01

Whether leave should be granted under rule 4 to file and serve a Notice of Appeal and Record of Appeal out of time

Holding

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

Reasoning

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.

p. 1
02

Whether waiting for a Certificate of Delay justifies delay in filing an appeal

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application under rule 4 of the Court of Appeal Rules is dismissed
  2. 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

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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, "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.