Pradip Kumar Vasant Bhai Patel & another v Kenya Commercial Bank Limited & 15 others [2006] KECA 178 (KLR)

The Judge computed the delay from the expiry of the seven-day period on 7 November 2005 to the filing of the rule 4 application on 4 July 2006, accepted that it was long and that much of it followed counsel's realisation of the defect on 21 February 2006, and found the explanation to be counsel's mistake plus mistaken information attributed to the Registry. He then weighed the strong prospects of the rule 76 application, the non-participation of the other defendants, KCB's non-opposition and the absence of prejudice, and held that the discretion, judicially exercised, favoured extension.

The Judge recorded that the Notice of Appeal was lodged on 31 October 2005 and that the seven days allowed for lodging the rule 76(1) motion expired on 7 November 2005, while the motion dated 3 November 2005 was only lodged in late November. This finding established the starting point of the delay and showed why the motion could not stand without a deeming order under rule 4. It confirms, as a matter of practice, that the seven-day period runs from the lodging of the Notice of Appeal.

Counsel's failure to appreciate that the seven-day limit applied and that it ran from the lodging of the Notice of Appeal was accepted as the principal cause of the initial delay. The Judge stressed, however, that a further four months elapsed after 21 February 2006, when counsel had already recognised the problem and intimated the rule 4 application, before it was eventually filed on 4 July 2006. He treated the delay as long for that reason, an aggravating factor to be weighed in the balance rather than a bar to the exercise of discretion.

The merits of the intended rule 76 application were assessed because extension would be futile if that application were hopeless. The Judge found its chances of success strong since none of the fifteen other defendants had taken part in the superior court proceedings and KCB, represented by Miss B. N. Kamau, was not opposing. He also found that serving all the other respondents would involve substantial expense and probable further waste of time, with no apparent prejudice to the parties not to be served. These factors tipped the discretion decisively in favour of extension.

For the delay between February and July 2006, counsel stated from the bar that the Registry had informed him he could not file any further application for extension until leave to dispense with service had been granted. The Judge did not accept this as a sufficient explanation, observing that if the Registry did give that information it would appear to have been mistaken. The delay therefore remained attributable to the applicants, a finding that informed both the grant of extension and the refusal of costs.