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Court of AppealAllowedCivil Application No NAI 50 of 2002 (UR. 29/2002)

African Airlines International Ltd v Eastern & Southern African Trade & Development Bank (PTA Bank)

Court of Appeal
7 March 2003
1,343 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that judges must weigh all circumstances—not just delay length—before refusing to extend appeal filing deadlines.

What this practically means

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Executive summary

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The applicant, unsuccessful defendant in a loan and statutory power of sale dispute decided by Hewett J on 20 April 2000, sought extension of time to file notice of appeal and record of appeal. After the judgment it filed a review application, dismissed on 23 January 2001; the parties then agreed to arbitrate under the loan agreement, but arbitration did not proceed, and the application was not filed until 7 March 2002. Gicheru JA, sitting as a single judge, refused the extension with costs on the ground of long delay. On a reference under rule 54(1)(b) of the Court of Appeal Rules, the full Court (Lakha, Owuor and Keiwua JJA) allowed the reference. It held that all relevant factors - length of delay, reasons for delay, arguability of the appeal and prejudice - must be considered; the single judge had failed to consider the reasons for the delay (the agreed arbitration reference), the arguability of the appeal and the question of prejudice, of which not a single word appeared in his notes. Applying Mbogo v Shah, the Court found the discretion had been exercised on an incomplete basis and interfered. It also rejected the respondent's contention that filing a review destroyed the right of appeal, citing Sarkar's Law of Civil Procedure. The Court set aside the single judge's order, granted the extension sought, directed filing of the notice of appeal within seven days and the record within forty-five days thereafter, with costs of both applications to be 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 single judge erred in refusing to extend time to file notice of appeal and record of appeal
  2. 2.Whether the delay in filing was excusable
  3. 3.Whether the Court should interfere with the single judge's exercise of discretion
  4. 4.Whether filing an application for review extinguished the applicant's right of appeal

Key legal issues

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01

Factors for extension of time

Holding

The single judge erred by failing to consider the reasons for the delay, whether there was an arguable appeal, and prejudice to the respondent.

Reasoning

The Court held that extension of time requires weighing all relevant factors: length of delay, reasons for delay, arguability of the appeal and prejudice. The single judge considered only the length of the delay, ignoring the agreed reference to arbitration as the explanation, and made no findings on prejudice or arguability. That omission amounted to misdirection justifying interference.

p. 2
02

Interference with discretionary decisions

Holding

The Court interfered because the single judge's discretion was exercised on an incomplete consideration of relevant factors, per Mbogo v Shah.

Reasoning

Applying Mbogo v Shah, the Court may disturb a discretionary decision where the judge misdirected himself, acted on wrong matters, or failed to consider relevant matters and thereby reached a wrong conclusion. The single judge's failure to consider reasons for delay, arguability and prejudice brought the case within that standard.

p. 2
03

Effect of review application on right of appeal

Holding

Preferring a review does not destroy the right of appeal; the contention to the contrary was rejected as meritless.

Reasoning

The respondent argued that by filing a review application the applicant lost its right of appeal. The Court, citing Sarkar's Law of Civil Procedure, held the legal position well settled: a review may be filed before an appeal is lodged, and a subsequent appeal is not barred; only after an appeal is heard can review not proceed.

p. 3
04

Whether arguability of the appeal must always be assessed

Holding

There is no invariable rule requiring consideration of the merits of the intended appeal on every extension application.

Reasoning

The Court cautioned against turning every extension application into a pre-appeal hearing on prospects of success, which would defeat the purpose of the application. Merits may be material in some cases - notably hopeless appeals - but here, where the respondent knew an appeal was likely and no prejudice arose, the inquiry was unnecessary.

p. 2

Legal principles established

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  • An appellate court will not interfere with a lower court's exercise of discretion unless the decision is clearly wrong - misdirection, acting on wrong matters, or failing to consider relevant matters leading to a wrong conclusion.
  • All relevant factors - length of delay, reasons for delay, arguability of the appeal and prejudice - must be considered in deciding whether to extend time.
  • The discretion to extend time is unfettered and must be exercised flexibly on the facts; there is no invariable rule requiring consideration of the merits of the intended appeal.
  • Filing an application for review does not extinguish a party's right of appeal; an appeal may be filed after an application for review.

Court orders

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  1. 1.Reference allowed; order of the single judge set aside
  2. 2.Substituted order granting extension of time as sought
  3. 3.Notice of appeal to be filed within seven days from the date of the judgment
  4. 4.Record of appeal to be filed within forty-five days thereafter
  5. 5.Costs of the application and before the single judge to be costs in the appeal

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court at Nairobi (single judge of the Court of Appeal, Gicheru JA)
High Court Civil Case No 1361 of 1999
Jurisdiction invoked
Rule 54(1)(b) of the Court of Appeal Rules - reference to the full Court from a single judge's decision

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 our judgment, all the relevant factors must be taken into account in deciding how to exercise the discretion to extend time.
p. 2Extension of time - relevant factors
We wish to emphasise that the discretion which fell to be exercised is unfettered, and should be exercised flexibly with regard to the facts of the particular case.
p. 2Flexibility of the extension-of-time discretion
I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong
p. 2Mbogo v Shah - interference with discretion
An appeal may be filed after an application for review, but once the appeal is heard the review cannot be proceeded with.
p. 3Review does not bar appeal
we would allow this reference, set aside the order of the single judge and substitute therefor an order granting an extension of time as sought by the application.
p. 3Final orders
A notice of appeal shall be filed within seven days from today and the record of appeal within forty five days thereafter. Costs of this application and those before the single judge shall be costs in the appeal.
p. 3Final orders - timelines and costs

Issues in the judgment

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minor

Judgment dated and delivered 7 March 2003 though the application was filed 7 March 2002; heading references a ruling of Hewett J dated 20 April 2000 described elsewhere as a judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "African Airlines International Ltd v Eastern & Southern African Trade & Development Bank (PTA Bank)", Case Analysis (2003). Civil Application No NAI 50 of 2002 (UR. 29/2002). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/202/eng@2003-03-07

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