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Court of AppealPartially AllowedCourt of Appeal application (Notice of Motion) by Tumba Nyanga; record of appeal C.A. No. 329 of 2005

Tumba Nyanga v Julie Trayner [2006] KECA 16 (KLR)

Court of Appeal of Kenya
15 December 2006
EOE.O. O'Kubasu
1,561 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 gave a businessman more time to appeal, but ruled that only the High Court can decide which documents stay out of an appeal record.

What this practically means

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Executive summary

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This was an application by Notice of Motion under rules 4, 41, 42(1) and 85(2A) of the Court of Appeal (Amendment) Rules in which Tumba Nyanga sought extension of time to lodge and serve a notice of appeal, directions for filing the record of appeal, and exclusion of a translation of an exhibit (PWEX4, two copies of a passport) from the record. The applicant's earlier notice of appeal and record of appeal (C.A. No. 329 of 2005) had been struck out on 27 July 2006 after the respondent showed the notice had been served one day outside the seven-day period under rule 76(1), obliging the applicant to start the appeal process afresh. The applicant attributed the delay of about thirty days in bringing the fresh application to the difficulty of tracing him as a businessman travelling in and out of Kenya. The respondent opposed, arguing insufficient material and lack of candour. Deciding the matter as a single Judge of Appeal, O'Kubasu, JA restated the settled rule 4 factors - length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent - and, following Patel v Waweru, Leo Sila Mutiso, Muchugi Kiragu and Ratman v Camarasamy, held that the rules must prima facie be obeyed but that the discretion is unfettered and must be exercised on reasons. Satisfied that sufficient material was placed before the Court, he granted extension: the notice of appeal to be filed within seven days and the record of appeal lodged and served within thirty days thereafter. However, he declined prayer (c), holding that exclusion of documents from the record is a matter for a judge or registrar of the superior court under rule 85(3). Costs were assessed at K.Shs.5,000/= payable to the respondent within thirty days, in default execution to issue.

Questions the Court framed

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

  1. 1.Whether the Court should extend time fixed for lodging and serving the notice of appeal under rule 4 of the Court of Appeal Rules
  2. 2.Whether the record of appeal should be filed and served within a period set by the Court
  3. 3.Whether prayer (c) seeking exclusion of a translation of PWEX4 (two copies of a passport) from the record of appeal is properly before a single Judge of the Court of Appeal

Key legal issues

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01

Whether the delay in filing the fresh application after the earlier notice and record of appeal were struck out warranted extension of time

Holding

Yes. A delay of about thirty days was explained and sufficient material was placed before the Court; the discretion under rule 4 was exercised in the applicant's favour.

Reasoning

The earlier notice of appeal and record of appeal had been struck out on 27 July 2006, requiring the applicant to begin afresh. The delay of about thirty days was explained by the applicant being a businessman who travels in and out of Kenya and took time to trace. The Court applied the settled rule 4 factors and held it would be wrong to shut out an applicant where the intended appeal is arguable and the opponent is not prejudiced.

p. 3
02

Whether a single Judge of the Court of Appeal can order exclusion of documents from the record of appeal

Holding

No. That function lies with a judge or registrar of the superior court under rule 85(3).

Reasoning

Prayer (c) sought a direction that a translation of PWEX4 be excluded from the record. Rule 85(3) vests that power in a judge or registrar of the superior court, so the single Judge of Appeal declined to grant the prayer despite allowing the extension-of-time prayers.

p. 3
03

Whether rules of court must be strictly complied with

Holding

Yes. Rules of court must prima facie be obeyed; a party in breach has no unqualified right to extension of time.

Reasoning

Quoting Lord Guest in Ratman v Camarasamy, the Court emphasised that the rules provide a timetable for litigation and extension of time requires material on which the court can exercise its discretion; otherwise a party in breach would enjoy an unqualified right to extension, defeating the purpose of the rules.

p. 3

Legal principles established

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  • An application under rule 4 of the Court of Appeal Rules is decided by a single Judge exercising an unfettered discretion, but the discretion must be exercised upon reasons and judicially.
  • The matters for consideration on an extension-of-time application are: the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • Only a judge or registrar of the superior court - not the Court of Appeal - may direct which documents or parts of documents are excluded from the record of appeal.

Court orders

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  1. 1.Extension of time granted for lodging the notice of appeal
  2. 2.Applicant to file the notice of appeal within seven (7) days from the date of the ruling
  3. 3.Record of appeal to be lodged and served within thirty (30) days from the date the notice of appeal is filed
  4. 4.Prayer (c) seeking exclusion of the translation of PWEX4 declined
  5. 5.Costs of the application assessed at K.Shs.5,000/= to be paid to the respondent within 30 days, in default execution to issue

The bench

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

EO
majority

Wrote the judgment

Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application for extension of time to a single Judge)

Relief refused

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Prayer (c): direction that the translation of PWEX4 (two copies of a passport) be excluded from the record of appeal

Under rule 85(3) of the Court of Appeal Rules only a judge or registrar of the superior court may direct which documents are excluded from the record

p. 3

Costs

Costs of the application assessed at K.Shs.5,000/= to be paid to the respondent within 30 days from the date of the ruling, and in default execution to issue

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.

The matters which are to be considered whether to grant an extension of time are first the length of the delay, the reason for the delay, the chances of the appeal succeeding and lastly the degree of prejudice to the respondent if the application is granted.
p. 2Rule 4 extension-of-time factors
That prayer is not for this Court in view of the provision of rule 85(3) of the Court of Appeal Rules
p. 3Exclusion of documents from the record - forum
The other prayers are granted and hence I direct that the applicant is to file the notice of appeal within seven (7) days from the date hereof and the record of appeal to be lodged and served within thirty (30) days from the date the notice of appeal is filed.
p. 3Final orders - extension of time granted

Issues in the judgment

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minor

The name of the respondent is never stated anywhere in the judgment; the respondent is identified only by counsel's name (Mr. Chigiti).

minor

The judgment does not state the case number of the present application, only the case number of the earlier record of appeal (C.A. No. 329 of 2005) and that the earlier notice and record were struck out on 27th July 2006, without identifying the court or judge that struck them out.

minor

Ground 7 of the application is grammatically incoherent ('It is not necessary to include a translation of the copies of a passport are not relevant to the appeal'), making the applicant's position on the translation partly unclear.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Tumba Nyanga v Julie Trayner [2006] KECA 16 (KLR)", Case Analysis (2006). Court of Appeal application (Notice of Motion) by Tumba Nyanga; record of appeal C.A. No. 329 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/16/eng@2006-12-15

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