Swali v Mandila & 2 others (Civil Application E083 of 2024) [2024] KECA 1823 (KLR)
The bottom line
#Kenya's Court of Appeal gave Moses Swali 30 more days to file his appeal record, ruling that waiting 211 days for certified court proceedings wasn't his fault.
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 an extension of time within which to lodge and serve the record of appeal
- 2.Whether the delay of about eight months was inordinate and adequately explained
- 3.Whether the respondents would suffer prejudice if the extension were granted
- 4.Whether the application was sub judice by reason of similar applications pending in the High Court at Kakamega
Key legal issues
#Whether the discretion under rule 4 to extend time should be exercised in the applicant's favour
Yes. The approximately eight-month delay was not inordinate because certified proceedings were only ready and collected on 26th February 2024; the reasons for delay were plausible, and the respondents failed to demonstrate prejudice.
The court applied the Paul Wanjohi Mathane factors. The certificate of delay showed the application for certified proceedings was made on 26th July 2023 and proceedings took 211 days to type and supply, so the delay was not the applicant's fault. Filing before obtaining certified proceedings would have been unwise. The respondents made a bare allegation of prejudice and of sub judice without proof. The applicant's right to exhaust the appellate process weighed in favour of extension.
Legal principles established
#- Extension of time is an equitable remedy, not an automatic right, granted at the court's discretion to a deserving party on judicially guided considerations including period of delay, reasons for delay, prejudice and public importance.
Court orders
#- 1.The time within which the applicant should lodge and serve the record of appeal is extended by thirty (30) days from the date of the ruling, failing which the extension shall automatically lapse
- 2.Costs shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Kakamega
- Kakamega HCCA No. 20 of 2021
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules; sections 1A, 1B and 3A of the Civil Procedure Act; Rule 5 of the Appellate Jurisdiction Act
Relief refused
#Strike-out of the application for alleged sub judice and incompetence
The respondents failed to demonstrate how the application was sub judice; they did not annex copies of the alleged pending applications or their determinations
Costs
Costs shall be in the appeal
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.
It is now settled that extension of time is not an automatic right. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
The discretion under rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice.
It is not enough to merely allege. A party must go further and prove the allegation. In this regard, the respondents have miserably failed to do so. It is not for the court to go fishing for the evidence.
In the result, I allow the application. The time within which the applicant should lodge and serve the record of appeal is extended by thirty (30) days from the date hereof, failing which, the extension of time hereby granted shall automatically lapse. Costs shall be in the appeal.
Issues in the judgment
#The judgment contains typographical inconsistencies: 'Paul Wanjohi Methane' in the body versus the correct reported name of the cited case, and 'sufier' for 'suffer' in the summary of the respondents' affidavit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Swali v Mandila & 2 others (Civil Application E083 of 2024) [2024] KECA 1823 (KLR)", Case Analysis (2024). Civil Application (Motion on notice dated 12th March 2024), Court of Appeal at Kisumu. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1823/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.