Savings & Loan Kenya Limited v Jayanti & Jagdeep Developers Limited [2003] KECA 139 (KLR)
The bottom line
#The Court of Appeal dismissed a request to extend time for serving an appeal notice because the applicant waited 22 months without explaining 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 notice of appeal was served on 8 October 2002 as the applicant alleged, or on 17 October 2002 as the endorsement of service recorded, and therefore whether it was served out of time without leave.
- 2.Whether the respondents' failure to take the out-of-time service point in the earlier stay application precluded them from taking it in their application to strike out the notice.
- 3.Whether the 22-month delay in making the application for extension of time was inordinate and unexplained.
- 4.Whether the Court should in its discretion grant an extension of time under rule 4 for service of the notice of appeal.
Key legal issues
#Whether the notice of appeal was served on 8 October 2002 (within time) or 17 October 2002 (out of time).
On a balance of probabilities, service was effected on 17 October 2002 as the endorsement of service recorded, and not on 8 October 2002 as the applicant alleged; the notice was therefore served out of time without leave.
The notice of appeal was returned bearing an endorsement of service dated 17 October. The applicant's advocate did not read the endorsement and merely assumed it recorded 8 October. No reason was advanced why the endorsement would bear 17 October if service had in fact occurred on 8 October, and the respondents denied any mistake in the proceedings. Against that background the court held it improbable that the endorsement would bear the later date and resolved the factual dispute on a balance of probabilities.
Whether the respondents, having not taken the out-of-time service point in the earlier stay application, were precluded from raising it in their application to strike out the notice.
No. Failure to take the point earlier does not preclude the respondents from taking it now; the point remained open to them.
Counsel for the respondents submitted that the omission to raise the point when the stay application was made did not bar him from raising it subsequently, and the court expressly agreed. No principle of waiver or election was found to arise on the facts: the point that the notice of appeal had been served out of time without leave remained available to the respondents when they applied to strike out the notice in November 2002.
Whether the 22-month delay in making the extension-of-time application was inordinate and whether the discretion to extend time should nevertheless be exercised.
The delay of 22 months was inordinate and no explanation was advanced for it; the discretion could not be exercised in the applicant's favour and the application failed.
The extension application was made some 22 months after the notice of appeal was served. The court was satisfied that this delay was inordinate and that no explanation or account had been given for the whole period. Since the applicant also failed to establish that service had occurred within time, there was no basis on which the single judge could properly exercise his discretion to enlarge time for service of the notice of appeal.
Legal principles established
#- An endorsement of service on a notice of appeal is strong prima facie evidence of the date of service; a party asserting service on an earlier date must displace the endorsement on a balance of probabilities.
- An applicant for extension of time must explain any inordinate delay in bringing the application; absent an explanation, the court will not exercise its discretion in the applicant's favour.
- A party who fails to take a procedural point at an earlier stage of the proceedings is not thereby precluded from taking it later.
Court orders
#- 1.The defendant's application for extension of time under rule 4 to serve the notice of appeal is dismissed.
- 2.The respondents are awarded the costs of the application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- The superior court
- Jurisdiction invoked
- Rule 4 of the Rules of this Court (Court of Appeal Rules) - application for extension of time, heard by a single Judge of Appeal
Relief refused
#Extension of time under rule 4 of the Rules of this Court to serve the notice of appeal out of time
The court found on a balance of probabilities that the notice was in fact served on 17 October 2002, outside the prescribed time, and that the 22-month delay in making the extension application was inordinate and wholly unexplained, so the discretion could not be exercised in the applicant's favour.
Costs
The application is dismissed with costs to the respondents.
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.
For the reasons above stated, this application, in my judgment, fails and is dismissed with costs.
I am unable to exercise my discretion in favour of the applicant in the absence of any explanation.
I am also satisfied that a delay of 22 months in making this application was inordinate. No explanation has been advanced or account given for this period.
It is improbable that the endorsements would be dated 17th if not so served. I find this issue in favour of the respondents on a balance of probabilities.
failure to take this point earlier does not preclude him from taking it now. I agree.
Issues in the judgment
#The judgment does not state the cause title, case number or the names of the parties; it refers to them only by role ('the defendant', 'the respondents'), so the case title and case number cannot be recorded from the judgment itself.
The document supplied is a certified copy rather than the original judgment, as shown by the registrar's certification at the end of the text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Savings & Loan Kenya Limited v Jayanti & Jagdeep Developers Limited [2003] KECA 139 (KLR)", Case Analysis (2003). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/139/eng@2003-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.