PETER G.N. NG’ANG’A & another v HALL EQUATORIAL LIMITED [2007] KECA 159 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time for filing an appeal record because the applicants gave no honest explanation for their delay.
What this practically means
#Executive summary
#Key legal issues
#Scope of the discretion under rule 4 of the Court of Appeal Rules
The discretion to extend time under rule 4 is judicious and unfettered; the settled factors (length of delay, explanation for it, prejudice to the other party, merits of the appeal without a mini-appeal, effect on public administration, importance of compliance with time limits, and resources of the parties) are not exhaustive, though confined to factors reasonable in the circumstances of the particular case.
The court adopted the principles in Major Joseph Mweteri Igweta as well settled and expressly agreed with Waki JA's statement in Kagai Kimomori Watakia that the Rule 4 discretion is unfettered. It added that confining the court to the enumerated factors would deprive it of its discretion to consider other matters of equal importance, but that the list is limited to factors reasonable in the circumstances of each case. It also held there is no fixed period constituting inordinate delay; that question abides the circumstances of the particular case.
Genuineness of the explanation for the delay
The explanation required for any delay must be genuine even if based on ignorance of the law; an explanation the court finds to be an untrue story calculated to buy time does not excuse the delay, and the discretion cannot be exercised in a vacuum.
The applicants alleged that after Rimita J approved the draft order on 25th June 2003 their counsel inadvertently returned it to the respondent's advocates for further approval. The court perused the annexures, found no letter transmitting the approved draft, noted counsel's admission at the bar that no such letter existed, and observed that the order was only filed on 8th August 2003. It concluded the story was untrue and calculated to buy more time, leaving the delay of over one and a half months unexplained, and found no explanation at all for the month between 3rd September and 3rd October 2003.
Time taken in preparing the application
When considering the delay period, the time taken in preparing the application is treated in favour of the applicants and cannot be treated as delay, but that period must be reasonable in the circumstances of the volume of work involved in assembling the documents and compiling the record.
The court laid down this qualification to the assessment of delay and applied it: it accepted the explanation for the period between 8th August and 3rd September 2003, during which the extracted order was awaiting certification by the court, but found the subsequent one month before filing the application unexplained, remarking that preparation of the application could not have taken even a week given that the applicants' counsel already had the proceedings, the decision and the certified order.
Merits of the intended appeal and the burden on the applicant
An applicant under rule 4 bears the burden of demonstrating that the intended appeal would not be frivolous; where no draft memorandum of appeal is filed, the pleading dismissed by the superior court is not exhibited, and the affidavits do not disclose the grievances against the ruling, the court cannot reach an informed conclusion on frivolousness and that aspect cannot be decided in the applicant's favour.
Although the applicants had the proceedings and the decision long before filing the application, they filed no draft memorandum of appeal, did not file copies of the application dismissed by the superior court, and made no attempt to indicate in their affidavits the nature of their grievances against the ruling. The court held that this aspect could not be decided in their favour because the burden lay on them as applicants, and it observed that they had not persuaded it that the intended appeal was not frivolous.
Prejudice to the respondent
Where the effect of the delay is to keep a judgment creditor out of the fruits of its judgment, the question of prejudice favours the respondent and weighs against extension of time, even though the applicant retains a constitutional right of appeal.
The application before the superior court had sought to stop execution on a judgment obtained before 23rd October 2002. The respondent, as decree holder, had had a stay application dismissed and was being kept out of the fruits of its success while the appeal process was prolonged. The court acknowledged the applicants' constitutional right of appeal but held that, on the facts of the application, the question of prejudice favoured the respondent, forming part of the basis for refusing to exercise the discretion in the applicants' favour.
Legal principles established
#- An application under rule 4 of the Court of Appeal Rules engages a discretionary jurisdiction which must be exercised judiciously and upon reason.
- The factors relevant to a rule 4 extension application are not confined to the settled list in Major Joseph Mweteri Igweta; the discretion is unfettered and the list is non-exhaustive, though limited to factors reasonable in the circumstances of the particular case.
- The rule 4 factors are not a passport to ignore time limits; time limits are there to be observed and justice may be seriously defeated by laxity in complying with them.
- The explanation required for any delay in lodging a record of appeal must be a genuine explanation, even if based on ignorance of the law; an explanation found to be calculated to buy time does not excuse the delay.
- The applicant for extension of time bears the burden of demonstrating that the intended appeal is not frivolous; absent a draft memorandum of appeal or any indication of grievances, that aspect cannot be decided in the applicant's favour.
- In assessing delay, the time reasonably taken in preparing the application itself is treated in the applicant's favour and is not counted as delay, but that period must be reasonable in the circumstances of the work involved.
Court orders
#- 1.The application dated 29th September 2003 and filed on 3rd October 2003 seeking extension of time for lodging and serving the record of appeal was dismissed.
- 2.Costs of the application were awarded to the respondent.
- On appeal from
- High Court
- Civil Suit No. 5400 of 1991
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time, heard by a single Judge of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PETER G.N. NG’ANG’A & another v HALL EQUATORIAL LIMITED [2007] KECA 159 (KLR)", Case Analysis (2007). Court of Appeal application dated 29th September 2003, filed on 3rd October 2003 (application number not stated in the judgment; arising from High Court Civil Suit No. 5400 of 1991). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/159/eng@2007-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.