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Court of AppealPartially AllowedNot stated in the judgment (civil application relating to the intended appeal against High Court Civil Suit No. 589 of 1994)· [2005] KECA 262 (KLR)

Prudential Assurance Company of Kenya Ltd v Jutley & another [2005] KECA 262 (KLR)

Court of Appeal of Kenya

14 January 2005

EGE. M. Githinji

1,337 words in judgment

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The bottom line

The Court of Appeal gave an insurer another chance to appeal a Shs 2.1 million payout but refused to pause enforcement of the judgment.

What this practically means

Executive summary

This is a single-judge ruling of the Court of Appeal at Nairobi, delivered on 14 January 2005 by E. M. Githinji JA, on a notice of motion by Prudential Assurance Company of Kenya Ltd, the intended appellant, under Rules 4 and 5(2)(b) of the Court of Appeal Rules. The applicant sought leave to file a Notice of Appeal and record of appeal out of time, a deeming order that the annexed Notice of Appeal be treated as filed and served, and a stay of execution of the High Court judgment in High Court Civil Suit No. 589 of 1994 delivered on 31 May 2002, in which the first respondent, Sukhwinder Singh Jutley, recovered shs 2,142,852 under a personal accident policy for temporary total disablement following a road traffic accident; the judge fixed the weekly indemnity at shs 100,000 but allowed only 150 days rather than the 104 weeks claimed. Two prior appeals by the applicant were struck out as defective, the second on 10 December 2004 for omitting the proposal form from the record; the present application was filed within seven days. The court held the stay prayer incompetent: Rule 5(2)(b) requires a Notice of Appeal lodged under rule 74 before presentation, which was not yet in place, and Rule 52(2) bars a single judge from hearing stay applications. On the merits, the court found jurisdiction to grant extension of time following a striking out rather than a dismissal, applied Murai v Wainaina (No 3) and Ochieng v Ranmal Merag, found the intended appeal not frivolous, accepted the omission was an inadvertent mistake of counsel, noted the applicant had already been punished twice with costs, and held that the unwithdrawn cross-appeal for enhancement would cause the applicant great injustice if its appeal were denied. Prayers 4 and 5 were allowed, the Notice of Appeal deemed filed and served, the record of appeal ordered to be filed and served within 21 days, and costs of the application were given to the respondents.

Key legal issues

Competency of the application for stay of execution

Holding

The stay application was incompetent and could not be entertained. Rule 5(2)(b) presupposes that a Notice of Appeal has been lodged under rule 74 before presentation, but the court had not yet disposed of the applicant's application for leave to file a Notice of Appeal out of time. Independently, Rule 52(2) ousts the jurisdiction of a single judge over stay of execution applications.

Reasoning

The court read Rule 5(2)(b) as conditioning the competency of a stay application on a Notice of Appeal already lodged under rule 74 at presentation. Here the applicant's own motion sought leave to file the Notice out of time and a deeming order, neither yet granted, so the precondition failed. Additionally, Rule 52(2) reserves stay-of-execution applications away from a single judge, so the prayer could not be entertained on any view. The refusal rested on pure competency, not on the merits of the stay.

p. 2

Jurisdiction to grant extension of time enabling a struck-out appeal to be re-instated

Holding

The Court of Appeal has jurisdiction to entertain an application for extension of time to enable an appeal that was struck out, and not dismissed, to be re-instated, following Murai v Wainaina (No 3) and Ochieng v Ranmal Merag.

Reasoning

The court drew the decisive distinction between an appeal that has been dismissed and one that has been struck out. Only the latter leaves room for the extension route. Since both of the applicant's prior appeals were struck out (on 28 February 2003 and 10 December 2004 for defective records) rather than dismissed, the court could entertain the fresh application, grant leave to file a Notice of Appeal out of time and deem the annexed Notice filed and served.

p. 2

Exercise of the discretion to extend time: arguability, mistake of counsel, dispatch, prejudice and the pending cross-appeal

Holding

Extension of time was granted. The intended appeal was not frivolous, raising both factual and legal issues; the omission of the proposal form from the record was an inadvertent mistake of counsel; the application was filed within seven days; the applicant had already been punished twice by having appeals struck out with costs; the respondent faced no great prejudice beyond delayed recovery; and denial of the appeal while the respondent's unwithdrawn cross-appeal stood would cause great injustice.

Reasoning

The court weighed the settled extension-of-time factors: the applicant had consistently manifested an intention to appeal and had filed the application with utmost dispatch; the earlier ruling of 10 December 2004 had accepted the omission was unintentional; an earlier extension of time presupposed the appeal was arguable; the respondent's prejudice was limited to delay in recovering the judgment sum; and the risk of the respondent prosecuting a cross-appeal for enhancement to the original shs 10.4 million while the applicant was denied an appeal tilted the interests of justice towards allowing a competent appeal on both sides.

p. 3

Legal principles established

The Court of Appeal has jurisdiction to entertain an application for extension of time to enable an appeal which has been struck out, as opposed to dismissed, to be re-instated
An application for stay of execution under Rule 5(2)(b) is competent only if a Notice of Appeal has been lodged in accordance with rule 74 before its presentation to the court
A single judge of the Court of Appeal has no power to deal with an application for stay of execution
An inadvertent mistake of counsel in omitting a document from the record of appeal may justify extension of time, particularly where the application is made with dispatch, the applicant has already been penalised by prior striking out with costs, and the respondent will suffer no great prejudice

Court orders

1.Leave granted to the applicant to file a Notice of Appeal and record of appeal out of time (prayer 4 allowed)
2.The annexed Notice of Appeal deemed as filed and served on the first and second respondents (prayer 5 allowed)
3.The record of Appeal to be filed and served within 21 days from the date of the ruling
4.Costs of the application given to the respondents

Authorities

Legislation

Constitution of Kenyasection 64(4)
Court of Appeal RulesRule 4
Court of Appeal RulesRule 5(2)(b)
Court of Appeal RulesRule 52(2)
Court of Appeal Rulesrule 74

Cases cited (2)

Murai –v- Wainaina (No 3)
[1982] KLR 33
Ochieng –v- Ranmal Merag
[1984] KLR 361

On appeal from: High Court of Kenya; High Court Civil Suit No. 589 of 1994
Jurisdiction invoked: Application under Rule 4 and Rule 5(2)(b) of the Court of Appeal Rules, with Rule 52(2) and rule 74 engaged; no constitutional or statutory appellate provision invoked

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Prudential Assurance Company of Kenya Ltd v Jutley & another [2005] KECA 262 (KLR)", Case Analysis (2005). Not stated in the judgment (civil application relating to the intended appeal against High Court Civil Suit No. 589 of 1994). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/262/eng@2005-01-14

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