Wakilii

A.G. of Kenya v Nyong'o and Others (Application 2 of 2009)

East African Court of Justice · [2009] EACJ 3 · 2009 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to enlarge time to file a Reference on Taxation out of time under Rule 4 of the Rules of the East African Court of Justice
Decision
Application to enlarge time dismissed with costs to the respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed the application to enlarge time. The applicant failed to sufficiently and candidly explain the delay in filing the Reference on Taxation. The grounds advanced—Christmas vacation, family tragedies, and inter-governmental consultations—were found to be insufficiently evidenced, incoherent, and in some instances improbable. The delay was inordinate, unreasonable, and wanton. The applicant did not discharge the burden of placing necessary evidence before the Court to enable it to exercise its discretion judicially. No material was presented upon which the Court could exercise discretion in favour of the applicant.

Outcome

Application to enlarge time dismissed with costs to the respondents

Facts

The East African Court of Justice delivered judgment on 30 March 2007 in Reference No. 1 of 2006, ordering that the claimants (respondents in this application) be awarded costs to be taxed by the Registrar, taking into account that a single applicant could have presented the reference. The Bill of Costs was taxed and the Ruling on Taxation delivered on 19 December 2008. On 6 January 2009, the Attorney General of Kenya communicated the Ruling to the Clerk of the National Assembly and sought instructions. On 12 and 22 January 2009, the claimants sent written demands for payment. On 3 April 2009, approximately 90 days after the Ruling on Taxation, the Attorney General filed this application to enlarge time to file a Reference on Taxation under Rule 114, which requires filing within 14 days. The applicant claimed inability to file in time due to Christmas vacation, family tragedies affecting counsel, and inter-governmental consultations.

Issues

  1. Whether the applicant had sufficient reason to warrant extension of time to file a Reference on Taxation out of time.
  2. Whether the delay in filing the application was adequately explained by the applicant.
  3. Whether the grounds of Christmas vacation, family tragedies, and inter-governmental consultations constituted sufficient reason for the delay.
  4. Whether the proposed Reference on Taxation had sufficient merit to warrant extension of time.
  5. Whether granting the extension would cause prejudice to the respondents.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Extension of Time — Sufficient Reason — Burden of Proof
Under Rule 4 of the Rules of the East African Court of Justice, the Court may extend time prescribed by the rules for sufficient reason. What constitutes sufficient reason is left to the Court's unfettered discretion. The Court will accept either a reason that prevented an applicant from taking the essential step in time, or other reasons why the intended appeal should be allowed to proceed though out of time. However, the application must be made in good faith and the reasons must be plausible and candid to pass the test of sufficiency.
Extension of Time — Explanation of Delay — Duty to Provide Evidence
The duty of placing necessary evidence before the Court to enable it to exercise its discretion judicially is squarely on the applicant. Discretion is exercisable on the basis of evidence and sound legal principle. An applicant must provide sufficient evidence to support the grounds of the application to enable the Court to believe the truth of what is being asserted. Bare assertions from the bar without supporting evidence are insufficient.
Extension of Time — Christmas Vacation — Computation of Time
Christmas day is an official holiday within the provisions of the Rules of the East African Court of Justice. Court vacation is a vacation determined by the President of the Court and published in the Gazette. Under the Rules, periods include official holidays, Sundays and Saturdays, and are not suspended during Court vacations. A blanket statement that the entire staff of the East African Community go on 'Christmas vacation' without reference to the applicable rules or evidence does not constitute sufficient explanation for delay.
Extension of Time — Mistake of Counsel — Burden of Proof
While mistake of counsel should not be visited on the client, the mistake must first be proved before it can be admitted. An applicant claiming that counsel's personal circumstances prevented timely filing must provide evidence of those circumstances. Failure to provide medical, police, or other documentary evidence of claimed family tragedies, despite being challenged to do so, results in the Court being unable to determine whether the explanation is truthful.
Extension of Time — Negotiations and Consultations — Effect on Delay
It is a risky strategy to delay filing required documents on the strength of verbal negotiations or consultations which are not reduced to writing. The burden of proving that consultations took place, what their objective was, and what their result was, rests upon the applicant who seeks to rely on them. Respondents cannot be adversely affected by unevidenced consultations of which they knew nothing and in which they were not involved.
Extension of Time — Public Interest — Quantum of Award
Public interest in litigation relates to scrutinizing the issues leading to an award, not the quantum of the award itself. The public would be interested in matters such as why and how parties ended up in litigation, whether it was justifiable and unavoidable, and why procedural steps were not taken in time. The amount of an award is a mere consequence, and the Court's hands in deciding awards cannot be tied to an unknown quantity of public interest unless some law defines minimum and maximum limits.
Extension of Time — Prejudice to Respondents — Right to Enjoy Fruits of Judgment
The right to enjoy the fruits of judgment is as hallowed as the right of appeal, and a breach of either for no good reason would be prejudicial. Respondents who have obtained a costs award and have not commenced execution proceedings cannot be held accountable for delay during the period when they were awaiting response to settlement offers or when commencement of execution would have been legally pointless due to a pending application.

Legislation cited (9)

Cases cited (15)

  • Boney M. Katutumba v Waheed Karim (Civil Application No. 27 of 2007)
  • City Council of Nairobi v Intercity Utility Services Ltd (Civil Application No. 35 of 2007)
  • Samuel Ondiekiv Samuel Mageto Civil Application No.266 of 200
  • Wasike v Khisa and Another (Civil Appeal No. NAI 248 of 2003)
  • Wasike v Swala (Civil Application No. NAI 150 of 1983)
  • Mohamed & Muigai Advocates v Kang'ethe & Company Advocates (H.C.C.C. No. 234 of 1999)
  • Zam Nakumansi v Suleman Lule (Civil Application No. 02 of 1999)
  • Bogetutu Farmers v Mohamed Hassan Yonis (H.C.C.C. No. 154 of 1992)
  • Paul Njoroge v The Attorney General and Others (HC Misc Case No. 90 of 2004)
  • Mwangi v. Kenya Airways [2003] KL P.56
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi (Civil Application No. NAI 225 of 1997)
  • Wa'njuguna case (Misc Civil Application 621 of 2000)
  • Ratman v Cumara Samy (1965) I WLR 10 at Page 12
  • Ambunda v Tanzania Harbours Authority (Civil Appeal No. 164 of 2005)
  • Reference No.1 of 2006

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

A.G. of Kenya v Nyong'o and Others (Application 2 of 2009) [2009] EACJ 3 (16 October 2009)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.