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Court of AppealDismissedCivil Appeal (Application) No. 289 of 2001

Kapa Oil Refineries Limited) Spencon (K) Limited v Visoy Development Limited & another [2003] KECA 140 (KLR)

Court of Appeal of Kenya
2 May 2003
1,030 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to fix a filing mistake because the company waited four months without explaining why — no explanation means no second chances.

What this practically means

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Executive summary

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This is a single-judge in-chambers ruling of the Court of Appeal at Nairobi by Owuor, JA, dismissing an application by Kapa Oil Refineries Limited and Spencon (K) Limited for leave to amend their memorandum of appeal in Civil Appeal No. 289 of 2001, an intended appeal against the ruling of Mitei, J in H.C.C.C No. 1360 of 1999 dated 27th October 1999, dismissing an injunction application by Visoy Development Limited. The applicants sought leave under rule 4 of the Court of Appeal Rules to insert into the memorandum a prayer that the High Court ruling be set aside and the 1st respondent's injunction application dismissed, contending the omission was an accidental slip, and sought an order fixing time for filing and serving a supplementary record of appeal. The judge accepted that in proper circumstances the amendment would be proper under rule 84, since the omission related only to the nature of the order sought. However, the 1st respondent's director deponed that the applicants waited four months after being served with an application to strike out the appeal before filing the present application, and brought it only seven days before the hearing date fixed by consent. The applicants conceded the delay but offered no explanation in their affidavit or counsel's submissions. Holding that where there is no explanation there can be no indulgence, and that the delay was inordinate, the judge declined to exercise discretion in the applicants' favour and dismissed the application with costs to the respondent. The decision does not disturb the High Court ruling; it is a procedural ruling binding as to the requirement that unexplained inordinate delay disentitles an applicant to the Court's indulgence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants should be granted leave to amend their memorandum of appeal in Civil Appeal No. 289 of 2001 under rule 4 of the Court of Appeal Rules
  2. 2.Whether the applicants offered a sufficient explanation for the inordinate delay of four months in bringing the application
  3. 3.Whether the Court's discretion should be exercised in favour of the applicants notwithstanding the delay

Key legal issues

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01

Whether leave to amend a memorandum of appeal should be granted despite inordinate and unexplained delay in bringing the application

Holding

The application was dismissed because the applicants offered no explanation for the four-month delay in filing the amendment application after learning of the omission, even though the amendment itself would ordinarily have been proper under rule 84.

Reasoning

The judge accepted that in proper circumstances an applicant is entitled to amend a memorandum of appeal to comply with rule 84, since the omission concerned only the nature of the order sought. However, exercise of the discretion was conditional on the applicants showing a laudable reason for their failure to comply with the procedural steps in the Rules. The applicants conceded a four-month delay after service of the striking-out application, gave no explanation in their affidavit or counsel's submissions, and came to court only seven days before the hearing of the strike-out application. In such circumstances there could be no indulgence.

p. 2

Legal principles established

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  • Where an applicant seeking the Court's indulgence for failure to comply with procedural steps offers no explanation for the delay, no indulgence will be granted; inordinate unexplained delay disentitles the applicant to the exercise of discretion in their favour.

Court orders

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  1. 1.The application for leave to amend the memorandum of appeal and to extend time for filing and serving a supplementary record of appeal is dismissed
  2. 2.Costs of the application are awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 1360 of 1999
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application in an intended appeal)

Relief refused

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Leave to amend the memorandum of appeal to include a prayer for setting aside the High Court ruling and dismissal of the 1st respondent's injunction application, and an order specifying time for filing and serving a supplementary record of appeal

The applicants took four unexplained months to bring the application after the omission was drawn to their attention; there being no explanation for the delay, the discretion could not be exercised in their favour

p. 3

Costs

The application fails and is dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

As repeatedly stated by this Court where there is no explanation there can be no indulgence. The delay here was inordinate.
p. 3Unexplained delay and exercise of discretion
In the circumstances of this case, I am unable to exercise my discretion in favour of the applicants with the result that the application fails and the same is dismissed with costs to the respondent.
p. 3Final orders - dismissal with costs
But before this is done this Court must be satisfied that there was a laudable reason for the delay on the part of the applicant for not complying with the procedural steps in accordance with the Rules.
p. 2Precondition for exercise of discretion to extend time and permit amendment

Issues in the judgment

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minor

The ruling refers to the application being brought under 'substantially rule 4 of the Rules' and later to 'rule (4)' in varying formulations, and misspells 'supplimently record'; the coram lists only one Judge of Appeal sitting in chambers.

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, "Kapa Oil Refineries Limited) Spencon (K) Limited v Visoy Development Limited & another [2003] KECA 140 (KLR)", Case Analysis (2003). Civil Appeal (Application) No. 289 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/140/eng@2003-05-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.