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Court of AppealPartially AllowedNotice of motion dated 10th May, 2007 (Civil Application)· [2007] KECA 325 (KLR)

KENYA PORTS AUTHORITY v GITURO KAHUGI [2007] KECA 325 (KLR)

Court of Appeal of Kenya
8 June 2007
1,491 words in judgment
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The bottom line

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Kenya's Court of Appeal let Kenya Ports Authority appeal late because judgment was delivered without notice, but ordered Shs.20,000 costs as compensation.

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 Nairobi (Waki, JA) delivered on 8th June 2007 on a notice of motion dated 10th May 2007 by Kenya Ports Authority under rule 4 of the Court of Appeal Rules, seeking extension of time to file and serve a notice of appeal, request for copies of proceedings, memorandum of appeal and record of appeal against a judgment of Khaminwa J delivered on 15th September 2006, awarding the respondent, a former KPA employee, over Shs.2.3 million for premature termination of his employment. KPA contended it was never served with notice of the delivery of judgment and only learned of it on 6th November 2006; it then changed advocates, and compliance with Order 3 r 9A plus the court's own delay in hearing that change consumed further months, producing a cumulative delay of about six months. The respondent did not dispute the lack of notice of judgment but urged that KPA should have moved promptly after November 2006 and that, as a 63-year-old no longer earning regular income, he should enjoy the fruits of a judgment pursued for some 11 years. Applying the guidelines in Fakir Mohamed v Joseph Mugambi & 2 others, and holding the guidelines non-exhaustive, Waki JA attributed the delay's genesis to the superior court's breach of Order 20 rule 1 in delivering judgment without notice, found the delay not inordinate, held the intended appeal raised weighty issues requiring consideration at the highest level, and allowed the application with strict filing timelines. Costs of Shs.20,000/= were awarded to the respondent as fair atonement for prejudice, payable by 21st June 2007, with execution to issue in default.

Key legal issues

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01

Factors governing exercise of discretion under rule 4 of the Court of Appeal Rules

Holding

The discretion is open so long as justice is done between the parties, guided by the length of and reasons for delay, the merits of the intended appeal and prejudice, but not confined to those factors.

Reasoning

The court reaffirmed its self-set guidelines from Fakir Mohamed v Joseph Mugambi, holding that the listed considerations are relevant but not exhaustive, and that the judge may consider any other relevant factors. Applying these, the delay was traced to the superior court's failure to give notice of judgment and the time needed to comply with Order 3 r 9A on changing advocates, making the delay excusable and not inordinate.

p. 2
02

Whether the delay was inordinate and excusable

Holding

The delay's genesis was the delivery of judgment without notice to the applicant, a breach of Order 20 rule 1 of the Civil Procedure Rules by the superior court itself, and the remaining time was reasonably required for changing advocates and preparing the application.

Reasoning

The court found that neither the respondent nor his counsel explained why they did not inform the applicant of the ex parte delivery of judgment. The change of advocates required compliance with Order 3 r 9A, and the more than three months the court took to hear that application could not be blamed on the applicant. The balance of the delay was necessary preparation and not inordinate.

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03

Merits of the intended appeal

Holding

The intended appeal was not frivolous; it raised weighty issues of law on contractual rights and obligations between the Authority and its employees that required consideration at the highest level.

Reasoning

The judge perused the superior court judgment and the draft memorandum of appeal and found weighty issues of law, apparently arising in previous decisions concerning terminations in similar circumstances, requiring clear guidance at the highest level. The justice of the matter therefore demanded that the applicant be given the opportunity to test the validity of the judgment on appeal.

p. 2

Legal principles established

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  • In a rule 4 extension-of-time application, the court is not confined to the established guidelines but may consider any other relevant factors, while doing justice between the parties
  • A party present when judgment is delivered ex parte against an absent party acts in breach of good faith if it does not inform the absent party of the delivery of judgment

Court orders

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  1. 1.Time extended to file and serve a notice of appeal against the judgment of Khaminwa J made on 15th September, 2006
  2. 2.The notice of appeal to be filed and served on or before 5 p.m. on 21st June, 2007
  3. 3.Time extended for filing the record of appeal against the judgment of Khaminwa J made on 15th September, 2006
  4. 4.The record of appeal to be filed and served on or before 5 p.m. on 21st August, 2007
  5. 5.Costs of the application assessed at Shs.20,000/= to be borne by the applicant and paid to the respondent on or before 21st June, 2007, in default of which execution shall issue

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Civil Procedure RulesOrder 20 rule 1
  • Civil Procedure RulesOrder 3 r 9A

Cases cited (2)

  • Fakir Mohamed v Joseph Mugambi & 2 others
    Civil Appl. NAI. 332/04 (ur)
  • Kenya Ports Authority v. Edward Otieno
    C.A. No. 120/97 (ur)
On appeal from
High Court of Kenya
Not stated in judgment
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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Cite this brief

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Cite this brief

Caselaw, "KENYA PORTS AUTHORITY v GITURO KAHUGI [2007] KECA 325 (KLR)", Case Analysis (2007). Notice of motion dated 10th May, 2007 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/325/eng@2007-06-08

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