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Court of AppealPartially AllowedCivil Appeal 340 of 2004· [2007] KECA 352 (KLR)

RAMESH SHAH v KENBOX INDUSTRIES LIMITED [2007] KECA 352 (KLR)

Court of Appeal of Kenya
27 April 2007
ROR.S.C. OmoloSBS.E.O. BosirePWP.N. Waki
2,403 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a good arguable appeal cannot excuse a long, poorly explained delay when seeking permission to appeal late.

What this practically means

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Executive summary

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Kenbox Industries Limited brought a reference under rule 54(1)(b) of the Court of Appeal Rules seeking to vary, discharge or reverse a decision of a single Judge who, on 12th September 2005, had allowed Ramesh Shah to file a notice of appeal and record of appeal out of time against a judgment of Ransley J of 10th June 2003 awarding Kenbox special damages exceeding Shs.27 million in an 18-year-old jukebox supply contract dispute. The single Judge had found the reasons for the approximately 18-month delay 'totally inadequate' and the pleaded grounds insufficient to show an arguable appeal, but was then persuaded by counsel's submissions that the appeal was arguable and that no special prejudice would result, and allowed the application on that basis alone. The full Court (Omolo, Bosire and Waki JJA) reaffirmed that a single Judge exercises the full Court's discretion under rule 4 and that interference on a reference lies only on established principles: irrelevant considerations, ignored relevant considerations, misapprehension of law or fact, or a plainly wrong decision. The Court held that the arguability of an intended appeal is only a factor for possible consideration and cannot, except in very exceptional or borderline cases, outweigh the primacy of the period of and reasons for delay - a contrary proposition would be open to abuse. Finding that the grant rested solely on arguability after adverse findings on delay, the Court allowed the reference, set aside the single Judge's orders, dismissed the motion of 20th December 2004, and ordered Shah to bear the costs of both the reference and the motion.

Key legal issues

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01

Principles governing interference by the full Court with a single Judge's discretionary decision under rule 4

Holding

The full Court may interfere only where the single Judge took into account irrelevant factors, failed to take into account relevant factors, misapprehended a point of law or fact, or reached a plainly wrong decision; the onus of demonstrating such breach lies on the applicant for the reference.

Reasoning

A reference under rule 54(1)(b) is not an appeal. The single Judge exercises the full Court's discretion, so his decision ought not to be easily dislodged. Interference is confined to established principles governing review of discretionary decisions, and the party seeking interference must demonstrably show those principles were not observed.

p. 1
02

Weight to be accorded to arguability of the intended appeal in extension-of-time applications

Holding

Arguability is only one factor among many, listed as a matter for 'possible' consideration, and cannot by itself justify extension of time where the period of and reasons for delay have been found wanting; such a proposition is open to abuse.

Reasoning

The authorities, including Mutiso v Mwangi and Mwangi v Kenya Airways Ltd, establish that the chances of the appeal succeeding are merely one factor for possible consideration, not an obligatory or overriding one. Period and reasons for delay take primacy; arguability may tip the balance only in borderline or rare cases such as Wasike v Swala, whose special circumstances did not obtain here.

p. 4
03

Whether the single Judge erred in principle in granting extension after finding the reasons for delay totally inadequate

Holding

He did: having found the reasons for the 18-month delay totally inadequate and the grounds of appeal insufficient, the only basis left for the grant was arguability founded on counsel's submissions, which was an error of principle.

Reasoning

The Judge first found the period and reasons for delay wanting and the pleaded grounds insufficient to show an arguable appeal, then was persuaded by counsel's submissions to find the appeal arguable and allow the application on that ground alone. Since inadequate delay and reasons could not form the basis of the discretion exercised in the applicant's favour, the grant rested solely on arguability, which the Court held was not an acceptable basis except in exceptional cases.

p. 4

Legal principles established

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  • A single Judge's decision under rule 4 is made on behalf of the full Court and the full Court on a reference may interfere only where the decision is shown to have taken into account irrelevant factors, ignored relevant ones, misapprehended a point of law or fact, or be plainly wrong.
  • The arguability of an intended appeal cannot, except in very exceptional and limited circumstances, outweigh the other relevant factors - especially the period of and reasons for delay - in an application for extension of time under rule 4.
  • The period of delay and the reasons given for it must take primacy of consideration in applications under rule 4.

Court orders

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  1. 1.The reference is allowed
  2. 2.The orders of the single Judge made on 12th September, 2005 allowing extension of time are set aside
  3. 3.An order is substituted dismissing the notice of motion dated 20th December, 2004
  4. 4.The costs of the reference and of the motion shall be borne by the applicant, Ramesh Shah

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 54(1)(b)
  • Court of Appeal Rulesrule 5(2)(b)
  • Former Court of Appeal Rules (East Africa)rule 9
  • Former rulesrule 81(1)

Cases cited (11)

  • Waweru & Another v Kirori
    [2003] KLR 448
  • Pothiwalla v Kidogo Basi Housing Co-operative Society Ltd & 31 others
    [2003] KLR 733
  • Wasike v Swala
    [1984] KLR 591
  • Standard Ltd v Gekonga & others
    [2005] 1 EA 376
  • Mutiso v Mwangi
    [1999] 2 EA 231
  • Murai v Wainaina (No 4)
    [1982] KLR 38
  • Githere v Kamungu
    [1984] KLR 387
  • Michuki & Another v Kentazuga Hardware Ltd
    C.A Nai. 16/98 (ur)
  • Mwangi v Kenya Airways Ltd
    [2003] KLR 486
  • Bhaichan Ghagwanji Shah v D Jamnadas & Co. Ltd
    [1959] EA 838
  • John Kuria v Kelen Wahito
    Nairobi Civil Application Nai 19 of 1983, April 10, 1984
On appeal from
High Court of Kenya, Nairobi
Nairobi H.C.C.C. No. 1107 of 1990
Jurisdiction invoked
Reference under rule 54(1)(b) of the Court of Appeal Rules to vary, discharge or reverse a decision of a single Judge under rule 4

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, "RAMESH SHAH v KENBOX INDUSTRIES LIMITED [2007] KECA 352 (KLR)", Case Analysis (2007). Civil Appeal 340 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/352/eng@2007-04-27

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