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Court of AppealPartially AllowedCivil Application (Motion on notice dated 12th March 2024), Court of Appeal at Kisumu

Swali v Mandila & 2 others (Civil Application E083 of 2024) [2024] KECA 1823 (KLR)

Court of Appeal of Kenya
20 December 2024
1,153 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu (Asike-Makhandia, JA) delivered on 20th December 2024 on a motion dated 12th March 2024 by Moses Swali seeking an extension of time to lodge and serve the record of appeal. The respondents had sued the applicant in Butali PMCC No. 276 of 2018, which he won; the High Court at Kakamega (HCCA No. 20 of 2021) allowed their appeal on 21st July 2023 and set aside the trial judgment. The applicant filed a Notice of Appeal and bespoked proceedings but could not obtain certified copies until 26th February 2024, resulting in a delay of about eight months before the motion. The respondents opposed, arguing weak prospects, prejudice, inadequate explanation, and that the application was sub judice given similar applications pending in the High Court. Applying rule 4 of the Court of Appeal Rules and the factors in Paul Wanjohi Mathane v. Duncan Gichane Mathenge and Nicholas Kiptoo Korir arap Salat v. IEBC, the court held the delay was not inordinate since proceedings took 211 days to be supplied; the reasons were plausible and the respondents showed no prejudice and failed to substantiate the sub judice claim. The application was allowed: time to lodge and serve the record of appeal was extended by thirty days, failing which the extension lapses automatically, with costs in the appeal. This is an interlocutory discretionary ruling, not a decision on the appeal itself.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted an extension of time within which to lodge and serve the record of appeal
  2. 2.Whether the delay of about eight months was inordinate and adequately explained
  3. 3.Whether the respondents would suffer prejudice if the extension were granted
  4. 4.Whether the application was sub judice by reason of similar applications pending in the High Court at Kakamega

Key legal issues

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01

Whether the discretion under rule 4 to extend time should be exercised in the applicant's favour

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.Costs shall be in the appeal

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 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

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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

p. 3

Costs

Costs shall be in the appeal

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.

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.
p. 2Nature of extension-of-time jurisdiction
The discretion under rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice.
p. 2Judicial exercise of rule 4 discretion (quoting Paul Wanjohi Mathane)
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.
p. 3Burden of proving sub judice
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.
p. 3Final orders and disposition

Issues in the judgment

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minor

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

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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, "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.