Charles Ngeene T/A Netway Agencies v Mwea Rice Growers Multipurpose Cooperative Society Limited [2003] KECA 118 (KLR)
The bottom line
#Kenya's Court of Appeal refused to revive a dismissed appeal because the client's lawyer missed the 30-day deadline and never explained the delay.
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 should be granted an extension of time to lodge an application for restoration of his appeal, dismissed under rule 99(1) for non-attendance, when rule 99(3) requires such an application within 30 days of the decision
- 2.Whether the applicant offered a satisfactory explanation for the delay of 39 days in lodging the first restoration application and a further one month and four days in lodging the present application
- 3.Whether the intended appeal (against the ruling deeming the defence and counterclaim filed) is arguable and whether the applicant has bona fides
- 4.Whether the applicant's claim could succeed given that the ex-parte judgment had been set aside and a defence and counterclaim may be filed any time before judgment
Key legal issues
#Whether to extend time under rule 99(3) for lodging an application to restore an appeal dismissed for non-attendance
Refused. Rule 99(3) requires the restoration application within 30 days and its language is plain. The advocate knew on 23rd April 2002 that the appeal stood dismissed for want of attendance yet took some 39 days to lodge the restoration application, which was struck out; even that did not prompt prompt action, as the present application followed a month and four days later with no explanation offered for the delay.
The court read rule 99(3) literally: restoration applications must be lodged within thirty days of the decision. The advocate was aware of the dismissal on the day it was made, yet waited some 39 days; that application was inevitably struck out. The striking out did not put him on guard — the present application came one month and four days later, and no explanation was offered for that further delay. Unexplained delay of this magnitude, coupled with doubts about the applicant's bona fides, defeated the discretionary relief sought.
Whether the intended appeal (against the ruling deeming the defence and counterclaim filed) was arguable
The intended appeal pursued nothing of substance. A defence and counterclaim may be filed at any time before judgment is entered, and as yet there was no judgment, since the ex-parte judgment had been set aside; the court could not see what the applicant was attempting to achieve.
The applicant sued for Shs.2,100,305 as the balance for erecting a semi-permanent modular storage shed, and obtained an ex-parte judgment in default of appearance after service by registered post. That judgment was set aside by consent, and his attempt to set aside the consent was withdrawn. His strike-out application against the defence and counterclaim failed before Hewett, J, who deemed the defence filed on 27/9/2000. Since a defence may be filed any time before judgment and no judgment existed, the court found the appeal pointless and the applicant's bona fides doubtful.
The bona fides of the applicant and his reluctance to have the main suit heard on its merits
The court was not satisfied about the applicant's bona fides and could not see why he did not want to get on with the hearing on the merits in the superior court.
Beyond the unexplained delay, the court examined the applicant's conduct of the litigation: he obtained an ex-parte judgment on defective service, resisted the consensual setting aside of that judgment, withdrew that attempt, and then sought to strike out the defence and counterclaim rather than face a hearing. This pattern, together with the absence of any substantive target for the intended appeal, led the court to conclude that the application lacked bona fides and that the extension of time could not be granted.
Service of summons on a corporation by registered post (background to the underlying dispute)
Service by registered post on the respondent corporation contravened the clear provision of Order V rule 2(a) of the Civil Procedure Rules; the personal service requirement introduced by Legal Notice No. 5 of 1996 was designed to circumvent precisely that mischief.
The applicant served the summons by registered post despite the clear provision in Order V rule 2(a) of the Civil Procedure Rules, and the deputy registrar then entered judgment against the respondent for want of appearance. The court observed that the Rules Committee introduced the personal service provision by Legal Notice number 5 of 1996 specifically to circumvent the mischief of alleged service on a corporation by registered post. This point is background explaining the weakness of the applicant's position rather than the ratio of this ruling.
Legal principles established
#- An application to restore an appeal dismissed for non-attendance under rule 99(1) must be made within 30 days of the decision, as rule 99(3) specifically provides; the time limit is clear and mandatory.
- A litigant seeking extension of time after missing a procedural deadline must offer a satisfactory explanation for the delay; unexplained delay, especially after a prior application has been struck out, will defeat the application.
- A defence and counterclaim may be filed at any time before judgment is entered; where the default judgment has been set aside, an appeal directed at the deeming of a defence is without substance.
- Service of summons on a corporation by registered post contravenes the personal-service requirement introduced by Legal Notice No. 5 of 1996, which was designed to circumvent the mischief of such service.
Court orders
#- 1.The application dated 24th November 2002 for extension of time to lodge an application for restoration of the appeal to hearing is dismissed
- 2.Costs of the application awarded against the applicant — 'I dismiss this application with costs.'
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court (referred to in the judgment as the superior court)
- Jurisdiction invoked
- Rule 99(3) of the Rules of this Court (Court of Appeal Rules) — the court's power to extend time for lodging an application to restore an appeal dismissed under rule 99(1); no constitutional or statutory provision is cited
Relief refused
#Extension of time to lodge an application for restoration of the appeal dismissed under rule 99(1) for non-attendance
Rule 99(3) plainly required the restoration application within 30 days; the advocate knew of the dismissal yet took 39 days, and after that application was struck out took a further one month and four days with no explanation. The court was also unsatisfied as to the applicant's bona fides and saw no substance in the intended appeal, since a defence and counterclaim may be filed any time before judgment and no judgment existed (the ex-parte judgment having been set aside).
Costs
The application was dismissed with costs (to the respondent): 'I dismiss this application with costs.' (The underlying appeal had itself been dismissed with costs under rule 99(1) on 23rd April 2002.)
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 am not at all satisfied about the bona fides of the applicant. I do not see why he does not want to get on with the hearing, on merits, in the superior court. I dismiss this application with costs.
The reading of rule 99(3) does not require any acumen. It is as clear as daylight.
It took him some one month and four days to lodge the present application and no explanation is offered for such delay.
It is trite that a defence and counterclaim can be filed any time before judgment is entered.
Personal service provision was introduced by the Rules Committee by Legal Notice number 5 of 1996 to circumvent the mischief that was played by alleged service on a corporation by registered post.
Issues in the judgment
#Internal date inconsistency: the restoration application is said to have been filed on 4th June 2000, yet it sought to set aside a dismissal order made on 23rd April 2002; the year 2000 appears to be a typographical error for 2002.
The judgment does not state the names of the parties; they are referred to only as 'the applicant' and 'the respondent', so the case title and party descriptions are reconstructed from the judgment's own description of the proceedings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Ngeene T/A Netway Agencies v Mwea Rice Growers Multipurpose Cooperative Society Limited [2003] KECA 118 (KLR)", Case Analysis (2003). Civil Appeal No. 115 of 2001 (application dated 24th November, 2002). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/118/eng@2003-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.