Kenya Film Corporation v Muthike [1987] KECA 13 (KLR)
The bottom line
#Kenya's Court of Appeal gave Kenya Film Corporation more time to appeal because its delay was short, explained, and the appeal raised a genuinely arguable issue.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to serve the notice of appeal dated September 24, 1986 out of time
- 2.Whether leave should be granted to lodge a notice of appeal against the assessment of damages dated March 24, 1987 out of time
- 3.Whether leave should be granted to lodge the record of appeal out of time
- 4.Whether the intended appeal raised a substantial issue warranting extension of time, including whether the parties were bound by the labour officer's findings
Key legal issues
#Whether time for service of the notice of appeal and lodging the record should be extended
Extension granted, the 9-day practical delay since June 17, 1987 being short and adequately explained, and a substantial issue existing on the appeal
The court surveyed the procedural history: the first assessment refusing damages was set aside on review, and the second assessment of Kshs 71,312 was confirmed only on June 3, 1987. The defendant awaited the outcome of the plaintiff's review, making June 3, 1987 the practical date to act. The 9-day delay was short, and the confusion caused by the fluctuating assessments was good reason. Applying the principles in Gatti v Shoosmith, and there being a substantial issue, extension was warranted.
Whether the intended appeal raised an arguable issue
Yes - whether the parties were bound by the labour officer's investigation and whether all issues could be re-opened at trial was not free from doubt
The parties had submitted the termination dispute to a labour officer, Mr Wanjohi, but the record did not show in what capacity he acted - whether as arbitrator with a binding award, or merely as investigator. Patel J held the parties bound, but the basis was unclear, and the officer's award of reinstatement left open what else was awarded. The defendant's accession to reinstatement was arguably not an admission of fault or liability. Which side was right could not be assessed on the materials before the court.
Legal principles established
#- A defendant whose defence is struck out may either appeal against the interlocutory decision on liability or wait until judgment is complete, including assessment of damages, and appeal against both orders by one compendious notice or separate notices
- An extension of time will not be granted where the appeal could not possibly succeed; there must be a substantial issue to be decided
- Where a full appeal is intended, non-service of an earlier notice of appeal and the absence of an earlier record do not prejudice the respondent if the appeal can still be put in order
Court orders
#- 1.The first notice of appeal to be served on the plaintiff within 7 days
- 2.Notice of appeal against the order of March 24, 1987 to be filed and served within 10 days
- 3.The whole record of appeal to be filed and served within 60 days of the date 10 days from the ruling date, unless the court extends the 60 days further on application on notice
- 4.Costs of the amended application to be costs in the cause of the appeal
- 5.Costs of the first application to be borne by the applicant in accordance with the order of July 1, 1987
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- not stated in judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time discretion)
Relief refused
#Costs of the first (misguided) application for extension of time
Costs were to be borne by the applicant per the earlier order of July 1, 1987
Costs
Costs of the amended application to be costs in the cause of the appeal; costs of the first application to be borne by the applicant in accordance with the order of the court given on July 1, 1987
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.
There being, to my mind, a substantial issue to be decided, and good reasons for the delay I grant the application
I agree that if the appeal could not possibly be successful there would be no point in extending time, even under the free discretion of this court within rule 4 of the rules.
Either the investigator acted as an arbitrator or he did not. There is nothing on the record before me to show in what capacity Mr Wanjohi acted.
On prayer 3 Notice of appeal against the order of March 24, 1987 to be filed and served within 10 days of today's date.
The costs of the first application to be borne by the applicant in accordance with the order of this court given on July 1, 1987.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Film Corporation v Muthike [1987] KECA 13 (KLR)", Case Analysis (1987). Civil Application No NAI 51 of 1987. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/13/eng@1987-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.