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Court of AppealAllowedNot stated in the judgment

Kenya Arab Orient Insurance Ltd v LochabTransport Ltd [1987] KECA 9 (KLR)

Court of Appeal of Kenya
23 January 1987
NYNyarangi
882 words in judgment
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The bottom line

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Kenya's Court of Appeal excluded 162 days of registry delay when computing appeal time, showing courts will grant extensions where delays are not the litigant's fault.

What this practically means

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Executive summary

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This was a single-judge application under rules 4 and 81 of the Court of Appeal Rules by Kenya Arab Orient Insurance Limited for leave to file its appeal out of time. Judgment in the superior court had been read before Shields, J on June 5, 1986, the subject matter being a contractual claim of Kshs 352,703, of which Kshs 50,000 had been paid towards compensation for damage to the respondent's car. The applicant applied for proceedings and judgment two days after judgment, but certified copies were only made available on November 17, 1986 - a period of 162 days evidenced by a certificate of delay filed under the proviso to rule 81(1). The respondent opposed, contending that the copies lay ready for collection 37 days before they were actually collected and that the certificate of delay was applied for late. The court accepted the applicant's uncontroverted affidavit evidence that the proceedings were not ready until November 17, 1986, noting that one of the two interlocutory applications causing delay had been brought by the respondent. Computing time from the notice of appeal lodged on August 5, 1986, the applicant had until January 17, 1987. In any event, the judge held that even if the last date had been November 17, 1986, the unfettered discretion under rule 4 would be exercised judicially in the applicant's favour because it was not dilatory and the appeal raised a genuine issue whether the parties and their advocates were heard by the superior court before judgment was read. The application was allowed with time extended for 14 days and the costs of the application made costs in the appeal.

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 leave to file its appeal out of time under rule 4 of the Court of Appeal Rules
  2. 2.Whether the period taken to obtain certified copies of the proceedings and judgment, evidenced by the certificate of delay, should be excluded in computing the time for filing the appeal
  3. 3.Whether the applicant was dilatory in collecting the proceedings and applying for the certificate of delay

Key legal issues

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01

Exclusion of the period covered by the certificate of delay in computing time to appeal

Holding

The 162 days taken from the application for proceedings and judgment on June 5, 1986 until certified copies were available on November 17, 1986 are excluded; the applicant therefore had until January 17, 1987 to institute the appeal.

Reasoning

The certificate of delay filed under the proviso to rule 81(1) showed the time required for preparation and delivery of certified copies. The respondent argued the copies lay ready for 37 days before collection, but the applicant's advocate's uncontroverted affidavit evidence that the proceedings were not ready until November 17, 1986 was accepted. One of the two interlocutory applications delaying matters had been brought by the respondent himself.

p. 3
02

Judicial discretion to extend time notwithstanding some delay

Holding

Even if the applicant's computation were wrong and the last date for filing was November 17, 1986, the court would still extend time because the applicant was not dilatory and the appeal involves a substantial claim and a genuine issue.

Reasoning

The judge held that rule 4 confers an unfettered discretion which must be exercised judicially. The intended appeal involved a claim for Kshs 352,703, and a live issue was whether the parties and their advocates were heard by Shields, J before judgment was given - a matter of fair hearing that deserved adjudication on appeal. The applicant's conduct was not characterized by lack of seriousness.

p. 3

Legal principles established

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  • In an extension-of-time application under rule 4, the delay occasioned by the preparation and delivery of certified copies of proceedings and judgment, as evidenced by a certificate of delay filed under the proviso to rule 81(1), is excluded in computing the time for instituting the appeal, and the court retains an unfettered judicial discretion to extend time even where the applicant was not wholly blameless, particularly where the intended appeal raises a substantive issue.

Court orders

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  1. 1.The application is allowed
  2. 2.Time is extended for 14 days
  3. 3.The appeal shall be instituted within the next 14 days
  4. 4.Costs of the application to be costs in the appeal
  5. 5.Mr Jowhal may apply informally vide rule 54(1)(b)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

NY
majority

Wrote the judgment

Jurisdiction invoked
Rules 4 and 81 of the Court of Appeal Rules

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.

In view of these conclusions the application is allowed, the time is extended for 14 days and the appeal shall be instituted within the next 14 days.
p. 3Final orders - extension of time granted
Costs of the application to be costs in the appeal.
p. 3Costs order
I would still exercise judicially the unfettered discretion I have in the matter and hold that in the circumstances the applicant was not dilatory
p. 3Judicial discretion under rule 4
The applicant will benefit from the 162 days and in the end, as far as I can judge of the matter
p. 3Exclusion of period covered by certificate of delay

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, "Kenya Arab Orient Insurance Ltd v LochabTransport Ltd [1987] KECA 9 (KLR)", Case Analysis (1987). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/9/eng@1987-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.