KENYA PORTS AUTHORITY v GITURO KAHUGI [2007] KECA 325 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Factors governing exercise of discretion under rule 4 of the Court of Appeal Rules
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.
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.
Whether the delay was inordinate and excusable
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.
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.
Merits of the intended appeal
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.
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.
Legal principles established
#- 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
#- 1.Time extended to file and serve a notice of appeal against the judgment of Khaminwa J made on 15th September, 2006
- 2.The notice of appeal to be filed and served on or before 5 p.m. on 21st June, 2007
- 3.Time extended for filing the record of appeal against the judgment of Khaminwa J made on 15th September, 2006
- 4.The record of appeal to be filed and served on or before 5 p.m. on 21st August, 2007
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.