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Court of AppealDismissedCivil Application (Mombasa)· [2006] KECA 165 (KLR)

TRANS NATIONAL BANK OF KENYA v HASAM SAID AMDUN [2006] KECA 165 (KLR)

Court of Appeal of Kenya
21 July 2006
SBS.E.O. Bosire
747 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a bank more time to appeal, ruling that parties must act within legal deadlines and cannot blame delays on their lawyers.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Mombasa (Bosire, JA) on an application under rule 4 of the Court of Appeal Rules for extension of time to lodge a fresh notice of appeal. The applicant bank, 1st defendant in Mombasa High Court Civil Case No 156 of 1998, had judgment pronounced against it on 11th February 2005. It said it only learnt the terms of the judgment on 21st March 2005, after the notice-of-appeal period had expired, and blamed its former advocate, Buruka Obonyo. Counsel relied on Kiarie v Njoroge to argue the applicant should not suffer for its advocate's mistake. The Court applied the settled Leo Sila Mutiso principles: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent. It found the applicant knew of the judgment by about 21st February 2005 and could have checked the court record for its terms, but gave no explanation for failing to do so or to give instructions. A further month elapsed before the application was filed, attributed to obtaining a second opinion on the need to appeal - a delay the Court held the law does not excuse. Additionally, the applicant had already filed an out-of-time notice of appeal without leave on 7th April 2005, which remained on record, making a further notice improper. The application was dismissed with costs.

Key legal issues

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01

Principles governing extension of time under rule 4

Holding

The Court considers 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

Reaffirming Leo Sila Mutiso, the Court treats the rule 4 discretion as guided by four settled factors. An applicant must offer a plausible explanation for the whole period of delay; knowledge of the existence of a judgment obliges a party to check the court record for its terms.

p. 2
02

Blame attributable to a former advocate

Holding

Delay in obtaining a second opinion and the advocate's failure to communicate the judgment's terms were not wholly attributable to the former advocate; the applicant could have checked the record itself.

Reasoning

While counsel relied on Kiarie v Njoroge to argue a litigant should not suffer for an advocate's mistake, the Court found the applicant knew of the judgment by about 21st February 2005, never explained why it did not check the record or give instructions, and the additional month's delay was its own.

p. 2
03

Effect of an existing out-of-time notice of appeal filed without leave

Holding

It is not proper to allow filing of a fresh notice of appeal where an out-of-time notice, filed without leave, already remains on record.

Reasoning

The applicant had on 7th April 2005, before this application, filed a notice of appeal out of time and without leave. The Court regarded the continued existence of that notice on the record as an additional reason not to permit a second notice of appeal.

p. 2

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary, guided by the length of the delay, the reason for delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • The law does not allow litigants extra time to obtain legal advice; they must act within the time allowed by law.

Court orders

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  1. 1.The applicant's application for extension of time to lodge a notice of appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 4

Cases cited (2)

  • Kiarie v Njoroge
    [1986] KLR 412
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. Nai 255 of 1997
On appeal from
High Court of Kenya
Mombasa High Court Civil Case No 156 of 1998
Jurisdiction invoked
rule 4 of the Court of Appeal Rules (extension of time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "TRANS NATIONAL BANK OF KENYA v HASAM SAID AMDUN [2006] KECA 165 (KLR)", Case Analysis (2006). Civil Application (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/165/eng@2006-07-21

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