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Court of AppealAllowedNot stated in judgment (application by notice of motion under Rule 4, Court of Appeal Rules)· [2005] KECA 126 (KLR)

Michael Hurbert Kloss & another v David Seroney & 5 others [2005] KECA 126 (KLR)

Court of Appeal of Kenya
21 September 2005
EOE. O. O'Kubasu
1,199 words in judgment
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The bottom line

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Kenya's Court of Appeal gave litigants more time to appeal because they genuinely didn't know the judgment had been delivered.

What this practically means

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Executive summary

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This was a single-Judge application under Rule 4 of the Court of Appeal Rules in which Michael Hubert Kloss and Bayer East Africa Limited sought an enlargement of time of thirty days to file a notice of appeal and record of appeal from a judgment of the High Court of Kenya at Eldoret (Nambuye J) delivered on 2nd March 2004. The applicants' supporting affidavit, sworn by Mohamed Munir Chaudhri, contended that neither the applicants nor their advocates were aware of the date of delivery of the judgment, as evidenced by extensive correspondence. The respondents, through the replying affidavit of Moses Oyoko Obiero, asserted that an advocate held brief for the applicants' advocates when judgment was delivered. O'Kubasu JA restated the settled framework for Rule 4 applications: the single Judge exercises an unfettered discretion, considering the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent, drawing on Patel v Waweru, Leo Sila Mutiso, Pothiwalla and Muchugi Kiragu. Noting the Deputy Registrar's letter of 6th November 2003 stating that judgment had not been delivered and that parties would be notified, and the applicants' continuing letters of 24th April 2004 and 12th October 2004 enquiring about the judgment, the court found the applicants did not know when judgment was delivered and had satisfactorily explained the delay. The application was allowed: the notice of appeal was to be filed within seven days and the record of appeal lodged and served within thirty days of filing the notice. Costs were ordered to be in the appeal. The decision below was not disturbed; the ruling concerns only appellate access.

Key legal issues

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01

Factors governing extension of time under Rule 4

Holding

The single Judge's discretion under Rule 4 is unfettered and is exercised considering the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Reasoning

The court restated the established test from its own precedents, including Patel v Waweru, Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Pothiwalla v Kidogo Basi Housing Co-operative Society Ltd and Muchugi Kiragu. The discretion must be exercised judicially and may be granted where the intended appeal is arguable and the opponent is not prejudiced.

p. 2
02

Whether the applicants' delay was satisfactorily explained

Holding

The applicants were genuinely unaware of the date of delivery of the judgment, as evidenced by their continued correspondence with the Deputy Registrar after 2nd March 2004, and the delay was therefore sufficiently explained.

Reasoning

The Deputy Registrar had written on 6th November 2003 that judgment in the case heard by Nambuye J had not been delivered and that the applicants would be notified of the date. Letters of 24th April 2004 and 12th October 2004 seeking the judgment showed continued ignorance of its delivery, explaining the absence of a timely notice of appeal.

p. 3

Legal principles established

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  • On a Rule 4 extension-of-time application the single Judge exercises an unfettered discretion, guided by four factors: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent.

Court orders

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  1. 1.The application is allowed
  2. 2.Applicants to file the Notice of Appeal within seven (7) days from the date of the order
  3. 3.Record of appeal to be lodged and served within 30 days from the date the Notice of Appeal is filed
  4. 4.Costs of the application shall be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (4)

  • Patel v Waweru & 2 Others
    [2003] KLR 361
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. NAI 251 of 1997 (unreported)
  • Pothiwalla v Kidogo Basi Housing Co-operative Society Ltd & 31 Others
    [2003] KLR 74
  • Muchugi Kiragu v James Muchugi Kiragu & Another
    Civil App. No. NAI 356 of 1996
On appeal from
High Court of Kenya at Eldoret
Eldoret HCCC No. R.6 of 2000 (intended appeal from judgment and decree)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Michael Hurbert Kloss & another v David Seroney & 5 others [2005] KECA 126 (KLR)", Case Analysis (2005). Not stated in judgment (application by notice of motion under Rule 4, Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/126/eng@2005-09-21

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