REUBEN M. MULI T/A KONZA MERCHANTS v KESHRA VISHRA T/A ALPESH ENTERPRISES (? 52 of 2006) [2007] KECA 22 (KLR)

Reiterating his own earlier summary in Fahir Mohammed v Joseph Mugambi, the judge noted that since the removal of the 'sufficient reason' stricture by amendment in 1985 the Rule 4 discretion has been unfettered. Relevant factors include the period of and reason for the delay, the chances of the appeal succeeding, prejudice to the respondent, the effect on public administration, the importance of compliance with time limits, the resources of the parties and public importance. The facts and circumstances of each application dictate the exercise, and the discretion cannot be exercised whimsically or capriciously.

The court isolated the periods requiring no explanation: the time covered by the certificate of delay under the proviso to Rule 81, and the interval by which the notice of appeal exceeded fourteen days, excused because the superior court itself failed to give notice of the ruling before delivering it. Only 36 days remained to be explained. The supporting affidavit said absolutely nothing about that period and counsel conceded as much. Following First American Bank, the defaulting party bears the burden of placing relevant material before the court; absent any explanation the delay was inordinate.

Merits are a possible factor; it may be an unkindness to an appellant to extend time to pursue a hopeless appeal, as African Airline International holds, but the single judge makes no peremptory findings on merits, that being the province of the full court. The only material was the draft memorandum of appeal and affidavit averments about triable issues, opposed by averments that the judgment was regular. Without the ruling that resolved the submissions made in the superior court, the submissions take the case no further, and the applicant's six-month failure to file the supplementary affidavit left the gap.

Both counsel misconstrued the law: the applicant needlessly sought and obtained leave to appeal in the superior court, while the respondent insisted such leave was mandatory under Order 42. Applying Ahn v Openda, the formal expression of an adjudication conclusively determining the rights of the parties is a decree under section 2 of the Act. Judgment was entered and a decree ensued for execution, on which the respondent had in fact proceeded, confirming the nature of the determination; the applicant's notice of appeal, though late, was therefore a procedural step taken as of right.

The respondent objected that the application was for 'leave to appeal' and so required a copy of the decision under Rule 43(3)(a). The court held that Rule 43 continues Rule 39, which governs applications for leave to appeal, whereas this application was expressly made under Rule 4. Although the prayers spoke of 'leave', they were for leave to appeal out of time. The court regarded this controversy, and the related leave-to-appeal debate, as irrelevant and inconsequential to the disposal of the application.