Small Enterprises Finance Company Ltd v Thomas Adongo Onuko T/A & another [2008] KECA 16 (KLR)
The bottom line
#Kenya's Court of Appeal granted a company a second chance to appeal because it returned to court within one week of its earlier appeal being struck out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the single judge should exercise discretion under Rule 4 to extend time for lodgment of a Notice of Appeal from the High Court judgment of 4th June 2004
- 2.Whether the period of delay (about one week after the earlier appeal was struck out) was inordinate
- 3.Whether the fresh Notice of Appeal filed on 25th June 2008 should be deemed lodged within the extended time
- 4.Whether the respondent would suffer prejudice if the extension were granted
Key legal issues
#Principles governing extension of time under Rule 4 of the Court of Appeal Rules
The discretion under Rule 4 is unfettered but must be exercised judicially; the four general factors (length of delay, reason for delay, chances of appeal succeeding, prejudice to respondent) are not exhaustive and other relevant factors may be considered.
The court relied on its earlier decisions in Mongira v Makori and Mwangi v Kenya Airways, which in turn endorsed Leo Sila Mutiso v Rose Hellen Wangari Mwangi. The guidelines were framed with the words 'in general', showing they were not meant to be exhaustive. Limiting the judge to the four listed factors would fetter the discretion that Rule 4 confers without limitation.
Application of the principles to the applicant's delay of about one week
The applicant acted promptly by filing this application within one week of the striking out of its earlier appeal and by filing a fresh notice of appeal; the discretion was therefore exercised in its favour despite the respondent's contention that a six-day delay was inordinate.
The earlier appeal (Civil Appeal No. 301 of 2004) had been struck out on 19th June 2008 because exhibit 13 was omitted from the record. The application was filed on 26th June 2008, within one week. Bearing the Rule 4 principles in mind and the facts, the judge was persuaded the applicant came back to court promptly, and granted the extension with directions on filing the record of appeal.
Legal principles established
#- The decision whether or not to extend time for appealing under Rule 4 is discretionary, and the general factors are the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent; but the list is not exhaustive and a single judge may consider any other relevant factor since the Rule 4 discretion is unfettered.
- Promptness in returning to court after a previous appeal has been struck out is a weighty factor favouring extension of time under Rule 4.
Court orders
#- 1.The application is allowed and time is extended for the applicant to file the notice of appeal within seven days from the date of the ruling
- 2.The notice of appeal already filed on 25th June 2008 is deemed as having been lodged within the time so extended
- 3.The applicant is to lodge and serve the record of appeal within 21 days from the date of the ruling
- 4.The costs of the application shall abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- Kisumu H.C.C.C. No. 110 of 1996
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules and Section 3 of the Appellate Jurisdiction Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary.
first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted.
Rule 4 gives the single Judge an unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed in the paragraph we have quoted above so long as the factor is relevant to the issue being considered.
Accordingly this application is allowed and the applicant is to file the notice of appeal within seven days from the date hereof. However since the applicant had already filed a notice of appeal the same shall be deemed as having been lodged within the time so extended.
The costs of this application shall abide the outcome of the intended appeal.
Issues in the judgment
#The prayer for extension of time states the notice of appeal be extended 'to the 225th June, 2008', an evidently typographical date; the body of the judgment indicates a fresh notice of appeal was filed on 25th June 2008.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Small Enterprises Finance Company Ltd v Thomas Adongo Onuko T/A & another [2008] KECA 16 (KLR)", Case Analysis (2008). Civil Application (Notice of Motion) following striking out of Civil Appeal No. 301 of 2004; arising from Kisumu H.C.C.C. No. 110 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/16/eng@2008-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.