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Court of AppealDismissedRule 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· [2005] KECA 40 (KLR)

Jeremiah Achila Gogo v Telkom Kenya Limited

Court of Appeal of Kenya
1 December 2005
1,364 words in judgment
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The bottom line

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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

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Executive summary

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A single Judge of Appeal, Githinji JA, sitting at Kisumu, dismissed an application under rule 4 of the Court of Appeal Rules for extension of the time fixed by the proviso to rule 80 within which to file an application to strike out an appeal. The intended target was Civil Appeal No. 153 of 2004 (formerly No. 20 of 2004, Kisumu), Telkom Kenya Limited's appeal against the dismissal of its objection to attachment of its vehicles in execution of a decree in HCCC No. 147 of 1999, a wrongful-retirement suit against the Kenya Posts and Telecommunications Corporation in which Wambilyangah J had awarded the applicant (whose name is not stated) general damages of Shs. 400,000 plus termination benefits. The draft decree carried large additional sums which the judge found were never claimed in the plaint, quantified under the Pensions Act, or assessed by the court, but were unilaterally inserted by the applicant's advocates, contravening Order XX rule 6 of the Civil Procedure Rules. Applying the criteria in Wasike v Swala and Leo Sila Mutiso, the judge held the nearly eleven-month delay inordinate and unjustified, the excuse of preoccupation with another application untenable since that application had ended three months earlier, and the application an afterthought aimed at reaching decretal funds; the appeal raised issues of law and was not ex facie incompetent; and extension would cause undue delay and prejudice. The application was dismissed with costs to Telkom Kenya Limited.

Key legal issues

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01

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?

Holding

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.

Reasoning

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.

p. 2
02

Was the delay of almost eleven months in bringing the application inordinate, and was it justified?

Holding

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.

Reasoning

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.

p. 3
03

Was the intended application to strike out the appeal frivolous, and did the decree's departure from the judgment bear on the question?

Holding

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.

Reasoning

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.

p. 3
04

Would the extension of time cause undue prejudice to the respondent?

Holding

Yes. Allowing the application would cause undue delay in the prosecution of the appeal, resulting in prejudice and unnecessary costs to the respondent.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application for extension of time under rule 4 of the Court of Appeal Rules is dismissed.
  2. 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

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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, "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.