Jeremiah Achila Gogo v Telkom Kenya Limited
The bottom line
#The Court of Appeal refused to extend time for a Kenyan decree-holder to strike out Telkom Kenya's appeal, because the eleven-month delay was inordinate and her decree exceeded the judgment.
What this practically means
#Executive summary
#Key legal issues
#What factors guide the exercise of the discretion under rule 4 of the Court of Appeal Rules to extend the time prescribed by the proviso to rule 80 for filing an application to strike out an appeal?
The discretion is unfettered, but before it can be exercised in the applicant's favour the applicant must show, among other things, that the intended application is not frivolous, that the delay is not inordinate, and that the extension will not cause undue prejudice to the respondent.
The application fell under rule 4, and the proviso to rule 80 barred any application to strike out a notice of appeal or an appeal brought more than 30 days after service of the record of appeal on the respondent. Citing Wasike v Swala and Leo Sila Mutiso, the judge adopted the settled tripartite criteria and then tested each in turn against the facts: the frivolousness of the intended application, the length of and explanation for the delay, and prejudice to the respondent.
Was the delay of almost eleven months in bringing the application inordinate, and was it justified?
The delay was inordinate and not justified; the explanation that the applicant's advocates were preoccupied with another application failed because that application was determined three months before this one was filed, and the application appeared to be an afterthought.
The record of appeal was served on the applicant's advocates on 14th July 2004, but the application was not filed until 9th June 2005. The alleged distraction, Civil Application No. Nai. 206 of 2004, had been determined on 10th December 2004, leaving a three-month unexplained gap; letters of 20th April 2005 and 18th May 2005 showed the strike-out intention crystallised only after the respondent refused to withdraw the appeal. The judge also observed the application was ostensibly aimed at hastening access to decretal funds lying in a bank account.
Was the intended application to strike out the appeal frivolous, and did the decree's departure from the judgment bear on the question?
The court refrained from determining the merits but found the appeal raised issues of law and was not ex facie incompetent; the decree far exceeded the judgment contrary to Order XX rule 6 of the Civil Procedure Rules, which was a strong reason to allow the respondent to prosecute the appeal.
The judge confirmed from the record of Civil Appeal No. 153 of 2004 that the approved draft decree was the operative decree and that attachment sought Shs. 3,834,244/45. Only Shs. 400,000 in general damages plus unquantified termination benefits had been awarded; the large additional figures were neither claimed in the plaint, computed by a competent authority under the Pensions Act, nor assessed by the court, having been unilaterally inserted by the applicant's advocates. The judge noted the respondent had, surprisingly, not sought rectification under section 34 of the Civil Procedure Act.
Would the extension of time cause undue prejudice to the respondent?
Yes. Allowing the application would cause undue delay in the prosecution of the appeal, resulting in prejudice and unnecessary costs to the respondent.
This was the third limb of the tripartite criteria. The judge weighed it against the object of the intended strike-out: the appeal was pending and, on its face, competent, and striking it out would terminate it without a full hearing. Combined with the inordinate and unjustified delay already found, the balance lay against extending time, and the application was dismissed with costs to the respondent.
Legal principles established
#- An applicant for extension of time under rule 4 of the Court of Appeal Rules must show, among other things, that the intended application is not frivolous, that the delay in bringing it is not inordinate, and that the extension will not cause undue prejudice to the respondent; the discretion is otherwise unfettered.
- A decree must conform to the judgment; sums neither claimed in the plaint, computed by a competent authority under the applicable statute, nor assessed and awarded by the court cannot be inserted into a decree, and a decree exceeding the judgment contravenes Order XX rule 6 of the Civil Procedure Rules.
- On an application for extension of time to strike out an appeal, the court will refrain from determining the merits of the intended application, confining itself to whether the appeal is frivolous or ex facie incompetent.
Court orders
#- 1.The application for extension of time under rule 4 of the Court of Appeal Rules is dismissed.
- 2.Costs of the application are awarded to the respondent, Telkom Kenya Limited.
- On appeal from
- High Court of Kenya
- HCCC No. 147 of 1999
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules - the discretion of a single Judge of Appeal to extend time prescribed by the Rules, here the proviso to rule 80 governing applications to strike out an appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah Achila Gogo v Telkom Kenya Limited", Case Analysis (2005). Rule 4 application within Civil Appeal No. 153 of 2004 (formerly Civil Appeal No. 20 of 2004, Kisumu); the application's own number is not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/40/eng@2005-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.