Wakilii

A.G. of Republic of Kenya v Anyang-Nyong'o and Others (Application 4 of 2009)

East African Court of Justice · [2009] EACJ 67 · 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—inability due to Christmas vacation, family tragedies, and inter-governmental consultations—were found to be insufficiently evidenced, incoherent, and in places improbable. The court held that the delay was inordinate, unreasonable, and wanton, and that the applicant had not discharged the burden of placing necessary evidence before the court to enable it to exercise its discretion judicially.

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. The Ruling on Taxation was 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 demanded 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, which under Rule 114 must be filed within 14 days. The applicant claimed inability to file in time due to Christmas vacation, family tragedies affecting counsel, and consultations between government offices.

Issues

  1. Whether the applicant had sufficient reason to warrant an extension of time to file a Reference on Taxation out of time under Rule 4 of the Rules of the East African Court of Justice.
  2. Whether the delay in filing the application was adequately explained by the applicant.
  3. Whether the grounds advanced by the applicant (Christmas vacation, family tragedies, consultations, public interest, lack of prejudice to respondents, and merit of the reference) were sufficient to justify the extension.

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 applicant bears the burden of placing necessary evidence before the court to enable it to exercise its discretion judicially and not capriciously. The application must be made in good faith and the reasons must be plausible and candid.
Extension of Time — Explanation of Delay — Insufficiency
A blanket statement that the entire staff of the East African Community go on Christmas vacation, without reference to the applicable rules on official holidays, court vacations, and computation of time, and without evidence of reliance on any specific rule or communication from a court officer, amounts to an insufficient explanation for delay. The applicant has a duty to sufficiently explain what is meant by claimed vacation periods and to demonstrate that the explanation is grounded in the rules of court.
Extension of Time — Family Tragedies — Proof Required
Where an applicant claims inability to file in time due to family tragedies, the applicant must provide evidence to support the claim, such as medical reports, police reports, or other documentary proof. Mere assertion from the bar, without corroborating evidence, is insufficient. The court cannot accept a story without proof, even from an officer of the court, where the burden of proof lies squarely on the applicant.
Extension of Time — Consultations and Negotiations — Effect on Delay
It is a risky strategy for an applicant to delay filing on the strength of verbal consultations or negotiations which are not reduced to writing and not evidenced before the court. The burden of proving that such consultations took place, what their objective was, and what their result was, lies upon the applicant. Unevidenced consultations to which the respondents were not party cannot adversely affect the respondents.
Extension of Time — Public Interest — Misplacement
Public interest in an application to extend time must relate to scrutinizing the issues leading to an award, not the quantum of the award itself. The quantum is a mere consequence. Unless some law defines the court's minimum and maximum limits in relation to public interest, the court's hands in deciding awards cannot be tied to an unknown quantity of public interest. Public interest must be evidenced and cannot be based on counsel's opinion alone.
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. Where respondents have not sat on their rights and have taken steps to enforce their judgment, they should be afforded an opportunity to embark on execution proceedings sooner rather than later. Delay in granting an extension can prejudice respondents' vested rights acquired by judgment.
Rule of Law — Compliance by Partner States
If a party in breach of procedural rules is a Partner State within the East African Community, it must not only obey the rules but must be seen by all to spare no effort to obey the rules if the Rule of Law in the Community is to achieve full and uniform respect. The rules of court must be obeyed, and a party in breach must provide material upon which the court can exercise its discretion; otherwise, the party would have an unqualified right to extension of time, which would defeat the purpose of the rules.

Legislation cited (9)

Cases cited (15)

  • Boney M. Katutumba v Waheed Karim (Civil Application No. 27 of 2007)
  • Mohamed & Muigai Advocates v Kang'ethe & Company Advocates (H.C.C.C. No. 234 of 1999)
  • City Council of Nairobi v Intercity Utility Services Ltd (Civil Application No. 35 of 2007)
  • Samuel Ondieki vs 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)
  • 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 vs 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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A.G. of Republic of Kenya v Anyang-Nyong'o and Others (Application 4 of 2009) [2009] EACJ 67 (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.