Fred M. O. & 2 others v Sarah Achieng Selllasie [2005] KECA 28 (KLR)
The bottom line
#Kenya's Court of Appeal let defendants file their appeal two and a half years late, because most of the delay was the court's fault, not theirs.
What this practically means
#Executive summary
#Key legal issues
#Factors governing extension of time under Rule 4
The court applies a flexible, non-exhaustive list of factors: length of and reason for delay, chances of the appeal succeeding, prejudice to the respondent, effect on public administration, compliance with time limits, resources of the parties, and public importance.
The court restated the settled approach to Rule 4 applications, quoting Fakir Mohammed v Joseph Mugambi, which itself compiled Mutiso v Mwangi, Mwangi v Kenya Airways, Igweta and Murai v Wainaina. The discretion is unfettered but must be exercised upon reason, not caprice, and not arbitrarily or oppressively.
Whether the delay was excusable where the court and counsel inaction contributed
Delay attributable in large part to the court's delay in producing proceedings, exhibits and the decree, and to the respondent's counsel's non-cooperation, is excusable; counsel's own lapses should be visited in costs rather than visited on the litigant.
The applicants applied in good time for proceedings and pursued the decree diligently once the registrar's letter issued. The residual 8 months of inactivity was explained by counsel's affidavit. The court held that blame attaching to the advocates is atonable in costs and should not defeat the litigants, noting the larger part of the delay was attributable to the court.
Necessity of exhibits and decree as primary documents
Exhibits produced at trial and the decree are primary documents necessary for a competent appeal; awaiting them before compiling the record is reasonable.
Relying on Commercial Bank of Africa v Ndirangu, the court rejected the respondent's submission that exhibits could be introduced in a supplementary record, holding they are necessary for determination of the appeal, as is the decree. The respondent's counsel's refusal to cooperate in obtaining the decree did not help his case.
Legal principles established
#- The discretion under Rule 4, though unfettered, must be exercised judicially upon relevant factors and not capriciously; the listed factors are relevant but not exhaustive.
- Exhibits produced at trial and the decree are primary documents without which an appeal cannot be competently mounted, and delay occasioned in obtaining them may be excusable.
Court orders
#- 1.Extension of time granted for filing the memorandum of appeal and record of appeal
- 2.The memorandum of appeal and the record of appeal to be filed and served within 14 days of the date of the ruling
- 3.Costs of the application to be borne by the applicants
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fred M. O. & 2 others v Sarah Achieng Selllasie [2005] KECA 28 (KLR)", Case Analysis (2005). Civil Application (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/28/eng@2005-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.