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Court of AppealDismissedCivil Application No. Nai. 138 of 1998· [1998] KECA 117 (KLR)

Mac's Pharmaceuticals Limited v Heco Uberseehandel Limited [1998] KECA 117 (KLR)

Court of Appeal of Kenya
23 October 1998
JGJ.E. Gicheru
767 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a six-month delay in filing appeal papers, warning that sluggish litigants lose their chance to appeal.

What this practically means

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Executive summary

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This is a ruling by Gicheru, J.A. sitting in chambers at Nairobi on a single-judge application by Mac's Pharmaceuticals Limited seeking extension of time to file a fresh notice and record of appeal against a High Court decree of Shields, J. dated 20th August 1992 in H.C.C.C. No. 581 of 1988, and leave to exclude Exhibit 'A' from the record. The court refused both limbs. First, it held a fresh notice of appeal was unnecessary because the notice lodged on 1st September 1992 had never been struck out or withdrawn. Second, on extension of time for the record of appeal, the certificate of delay showed proceedings were collected on 25th September 1997, giving the applicant until 24th November 1997; the application was lodged on 9th June 1998, over six months late. Counsel's excuse - a mistaken belief that the judgment was undated and thus offended Order XX rule 3(1) of the Civil Procedure Rules, only dispelled by the Magana Holdings ruling of 5th June 1998 - did not excuse the delay, which the judge described as dilatory and smacking of sluggishness, dissuading him from exercising discretion under rule 4. Third, the request to exclude Exhibit 'A' under rule 85(3) was beyond the Court of Appeal, as that rule vests the power in a judge or registrar of the superior court. The application was dismissed with costs to the respondent. The decision binds the parties and illustrates that unexplained delay defeats rule 4 discretion.

Key legal issues

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01

Whether a fresh notice of appeal was necessary

Holding

No - the existing notice of appeal had not been struck out or withdrawn, so extension of time to file a fresh one was misplaced

Reasoning

After the decree of 20th August 1992, the applicant lodged a notice of appeal on 1st September 1992. Nothing on record showed that notice struck out or deemed withdrawn; therefore the foundation for seeking a fresh notice was absent and that limb of the application failed on its own terms.

p. 1
02

Whether extension of time to lodge the record of appeal should be granted under rule 4

Holding

Refused - the delay of over six months beyond the 24th November 1997 deadline was dilatory and inexcusable

Reasoning

The certificate of delay showed proceedings were collected on 25th September 1997, giving the applicant until 24th November 1997. Counsel's mistaken view that the undated judgment offended Order XX rule 3(1) only resolved after the Magana Holdings ruling of 5th June 1998. The court held such sluggishness dissuaded it from exercising its rule 4 discretion.

p. 2
03

Whether the Court of Appeal could grant leave to exclude Exhibit 'A' from the record

Holding

No - that relief lies only before a judge or registrar of the superior court under rule 85(3)

Reasoning

The applicant sought exclusion of Exhibit 'A' under rule 85(3) of the Court of Appeal Rules, but the rule expressly confers that power on a judge or registrar of the superior court on the application of the party concerned. The Court of Appeal therefore had no jurisdiction to grant it.

p. 1

Legal principles established

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  • Leave to exclude a document from a record of appeal under rule 85(3) of the Court of Appeal Rules may only be granted by a judge or registrar of the superior court, not by the Court of Appeal
  • A party seeking extension of time to lodge a record of appeal must act diligently once certified proceedings are collected; unexplained, sluggish delay will defeat the discretion under rule 4

Court orders

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  1. 1.The applicant's application is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 85(3)
  • Civil Procedure RulesOrder XX rule 3(1)

Cases cited (1)

  • Magana Holdings v. Lillian Njeri Mungai and another
    Civil Appeal No. 143 of 1996 (unreported)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 581 of 1988
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single judge in chambers)

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, "Mac's Pharmaceuticals Limited v Heco Uberseehandel Limited [1998] KECA 117 (KLR)", Case Analysis (1998). Civil Application No. Nai. 138 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/117/eng@1998-10-23

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