Patron Card International Limited v Harambee Co-operative Savings & Credit Society Limited [2005] KECA 29 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal where the delay went to collecting legally required documents, and the winning side suffered no harm.
What this practically means
#Executive summary
#Key legal issues
#The nature and scope of the discretion under Rule 4 of the Court of Appeal Rules
The discretion to extend time under Rule 4 is unfettered and is guided by a non-exhaustive list of relevant factors: the period of delay, the reason for the delay, the chances of the appeal succeeding, the degree of prejudice to the respondent, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties and public importance.
The judge recalled that since the stricture of 'sufficient reason' was removed by amendment in 1985, the discretion has been unfettered, restating the position from Fakir Mohammed v Joseph Mugambi and the line of authority cited there. Because there is no limit to the number of relevant factors, the court weighed the delay, its explanation, the prospects of the appeal, prejudice to the respondent and the substantial sum in issue together, rather than treating any factor as a rigid prerequisite.
Whether the exhibits pursued by the applicant's counsel were necessary in the intended appeal
Exhibits produced before the superior court are primary documents which must be included in the record of appeal; the applicant was justified in pursuing them because omitting them would have rendered the appeal incurably defective and therefore incompetent.
Although the rules do not expressly use the labels 'primary' or 'secondary', Rule 85 enumerates the documents that must be contained in a record of appeal, and Rule 85(2A), as amended by Legal Notice 76/90, those that may with leave be included in a supplementary record. Relying on Commercial Bank of Africa Ltd v Ndirangu, the court held that the trial court's notes and all exhibits made before the decision appealed from are primary documents unless specifically excluded by a judge's direction under Rule 85(3), and a party has no discretion to omit any document from the record.
Whether time taken to obtain a certificate of delay is excluded in computing the 60-day period under the proviso to rule 81
Only the time required for the preparation and delivery of copies of the proceedings is excluded; time spent obtaining a certificate of delay is not excludable and is instead a matter for explanation under the Rule 4 discretion.
For purposes of the proviso to rule 81 it was not necessary to apply for certified copies, since the rule refers only to 'a copy of the proceedings'. Adopting the decision in Republic v The Minister for Transport & Communications ex-parte Kenya Consumers Organisation, the court held that a record of appeal does not need certified copies of proceedings, judgments or rulings, so the period spent waiting for the registrar's certificate of delay, issued on 31.3.05 after fees for an amendment had been collected, could not be deducted from the computation.
Whether the explanation for the delay and the absence of prejudice justified the extension of time
The delay was substantially explained by the pursuit of the exhibits and an amended certificate of delay; the respondent knew of and did not controvert those efforts, and no prejudice beyond delayed recovery of costs was shown, so the discretion was exercised in the applicant's favour.
The applicant lodged and served a timeous notice of appeal on 02.12.04, and the certificate of delay excluded 03.12.04 to 31.03.05. The ensuing inactivity was devoted to pursuing the lists of exhibits and an amended certificate, with all correspondence copied to the respondent and no replying affidavit filed. A substantial sum was in issue and questions of law on the interpretation of the alleged contract would be raised. The only prejudice identified was the delay in recovery of costs.
How a factual objection to an extension-of-time application must be raised
A factual objection, such as an assertion that the documents pursued were already in the applicant's possession, ought to be raised by affidavit rather than merely in submissions.
Counsel for the respondent argued that there was no reason to apply for the exhibits since the applicants had them in their possession, and that 60 days of unexplained delay followed receipt of the exhibits in June 2005. The judge observed in passing that there was no admission that the exhibits were in the applicant's counsel's possession, so the point was factual and should have been dealt with in a replying affidavit; the applicant's uncontroverted account in its 20-paragraph affidavit therefore stood.
Legal principles established
#- The discretion to extend time under Rule 4 is unfettered, and the court may consider any relevant factors, the listed factors being non-exhaustive.
- In computing the 60-day period for lodging a record of appeal under the proviso to rule 81, only time required for preparation and delivery of copies of the proceedings is excluded; time taken to obtain a certificate of delay is not excludable and remains a matter for explanation.
- All exhibits and interlocutory applications and orders made before the decision appealed from are primary documents which must be included in the record of appeal unless excluded by a judge's direction under Rule 85(3); their omission renders the appeal incompetent, and a party has no discretion to omit them.
Court orders
#- 1.Time extended for filing the memorandum of appeal and the record of appeal
- 2.The appeal to be filed within 15 days of the date of the ruling
- 3.Costs of the application to abide the result of the appeal
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time to file a memorandum of appeal and record of appeal out of time), with computation governed by the proviso to rule 81
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patron Card International Limited v Harambee Co-operative Savings & Credit Society Limited [2005] KECA 29 (KLR)", Case Analysis (2005). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/29/eng@2005-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.