Mwamba & 6 others v Makwolo & 3 others (Civil Application E079 of 2024) [2024] KECA 1579 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time for filing an appeal record because the applicants delayed requesting proceedings and could not explain their delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants demonstrated sufficient grounds for extension of time under Rule 4
The application failed because the applicants were casual and gave insufficient information on the reasons for the delay and the prejudice, and the delay of about fifty days before applying for proceedings was unexplained.
The court applied the Salat principles: extension of time is an equitable remedy for a deserving party who must lay a basis. Here, the applicants did not explain why it took about fifty days after the ruling to request proceedings, why more than twenty days elapsed after receiving the certificate of delay before filing the application, or what prejudice they would suffer. Casual presentation by both parties reinforced the refusal of the discretionary relief.
Whether the certificate of delay could be relied upon to discount time in computing the period for filing the record of appeal
The certificate of delay could not assist the applicants because they requested proceedings outside the thirty-day window and did not copy the request to the respondents; the certificate itself was also suspect on its face.
Section 84(1) of the Court of Appeal Rules excludes time taken to supply proceedings only where the request was made within thirty days of the decision, and section 84(2) withdraws that benefit where the request was not copied to the respondent. The applicants' request was made about fifty days after judgment and was not copied to the respondents. The certificate of delay was also internally contradictory, indicating the proceedings were ready on 17th April 2024 yet issued only on 4th June 2024.
Legal principles established
#- Extension of time is not a right of a party; it is an equitable remedy available only to a deserving party, and the party seeking it bears the burden of laying a basis to the satisfaction of the court.
- Under the proviso on computation of time, time taken to supply a copy of proceedings is excluded only where the request for proceedings was made within thirty days of the decision and the request was copied to the respondent.
Court orders
#- 1.The Notice of Motion dated 25th June, 2024 seeking extension of time to file and serve the record of appeal out of time was dismissed
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Kisii
- Kisii Civil Appeal No. 119 of 2019
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules read together with Rule 55(1) of the Court of Appeal Rules, 2022 (discretion of a single Judge to extend time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwamba & 6 others v Makwolo & 3 others (Civil Application E079 of 2024) [2024] KECA 1579 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 25th June, 2024, Court of Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1579/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.