RICHARD AKWESERA ONDITI v KENYA COMMERCIAL FINANCE CO. LTD [2008] KECA 227 (KLR)
The bottom line
#The Court of Appeal refused to hear an extension-of-time application because the appellant's court record omitted the pleadings, adjourning it with costs against him.
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 a further extension of time on the basis of the Ruling of the Court delivered on 1st December 2006
- 2.Whether the applicant has complied with the Order of Tunoi JA dated 29th November 2007 requiring incorporation of the pleadings in the record
Key legal issues
#Compliance with prior directions on the contents of the record of an extension-of-time application
The applicant, despite the order of Tunoi JA, failed to incorporate copies of the pleadings in the superior court in the record, and the application could not properly be heard until that omission was rectified
The court traced the history of the application, noting that Tunoi JA had on 29th November 2007 stood the application over and granted leave to file a supplementary record including the relevant documents. Although the applicant filed a supplementary record of 101 pages, the document headed 'Pleadings' was in substance an affidavit and did not include a plaint, Originating Summons or any other pleadings. The judgment of Tanui J and the proceedings were incorporated, but not the pleadings. The court therefore stood the application over again rather than determine it.
Legal principles established
#- An applicant seeking an extension of time must place before the Court a record containing the pleadings, the judgment or ruling and the proceedings in the superior court before the application can be considered
Court orders
#- 1.Application No. NAI. 157 of 2007 stood over to the next session in Kisumu to enable the omission of the pleadings from the record to be rectified
- 2.Costs occasioned by the adjournment awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Relief refused
#Further extension of time
The application was not heard on its merits because the record remained deficient; it was stood over for rectification rather than dismissed
Costs
Costs occasioned by the adjournment awarded to the respondent
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.
In these circumstances I hereby order that the application No. NAI. 157 of 2007 be stood over to the next session in Kisumu to enable this omission to be rectified.
The appellant has omitted to incorporate in the record of the Motion the most vital documents—pleadings and judgment/ruling or even the proceedings. As such I will not be able to make out what the matter in dispute is all about.
I have come to the conclusion that despite the Order of Tunoi JA dated 29th November 2007, while the applicant has now incorporated, in the record of the application, the judgment of Tanui J. and the copy of the proceedings in the superior court, the applicant has not incorporated, in that record, copies of the pleadings in the superior court as required in the Order of Tunoi JA.
Issues in the judgment
#The recital states the previous ruling of Onyango Otieno JA was delivered on 1st December 2007, while the judgment elsewhere and the grounds refer to it as dated 1st December 2006; the document is internally inconsistent as to the year
The judgment is signed and dated at Nairobi on 24th April 2008 by Deverell JA but delivered at Kisumu on 25th April 2008 by Aganyanya JA, whose role in the decision is otherwise not explained
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "RICHARD AKWESERA ONDITI v KENYA COMMERCIAL FINANCE CO. LTD [2008] KECA 227 (KLR)", Case Analysis (2008). Civil Application No. NAI. 157 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/227/eng@2008-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.