Industrial Distributors Ltd & another v Jagdish Devshi Shah & another [2008] KECA 31 (KLR)
The bottom line
#Kenya's Court of Appeal gave litigants another chance to salvage a struck-out appeal, but only with fresh notices and strict deadlines.
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 applicants deserve an extension of time within which to file fresh notices of appeal and a record of appeal after their earlier appeal was struck out as incompetent
- 2.Whether the applicants' delay in regularizing the defective appeal was explained or disentitled them to the Court's discretionary relief
Key legal issues
#Exercise of the rule 4 discretion to extend time despite unexplained dilatoriness
The court extended time for fourteen days notwithstanding the applicants' dilatoriness, because the application was brought promptly after the appeal was struck out, the appeal was not decided on the merits, and the applicants had already been punished in costs when the appeal was struck out.
The judge acknowledged the applicants were dilatory, having taken no steps for over a year and a half after service of the application to strike out, and their earlier application for leave to file a supplementary record was itself struck out as incompetent. Nevertheless, the discretion under rule 4 is unfettered. The striking out was on competence grounds, not the merits; the applicants moved promptly after the striking out; and costs had already been awarded against them. On balance the discretion was exercised in their favour, with strict timelines imposed.
Legal principles established
#- The jurisdiction under rule 4 to extend time is discretionary and unfettered; delay, though a relevant factor, does not automatically disqualify an applicant who comes to court promptly after the striking out of a defective appeal that was not decided on the merits.
- Where an appeal is struck out as incompetent, fresh notices of appeal must be filed within the extended time; the old notices of appeal attached to the struck out appeal cannot be validated by an extension order.
Court orders
#- 1.Extension of time for fourteen (14) days from the date of the order within which the applicants shall file and serve fresh notices of appeal against the decisions of the superior court dated 22nd May 2000 and 18th May 2001
- 2.The applicants shall have 30 days thereafter to lodge and serve a record of appeal
- 3.The applicants shall pay the costs of this application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Milimani High Court Civil Case No. 1851 of 1999
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Relief refused
#Validation of the original notices of appeal dated 29th May 2000 and 4th June 2001
The original notices went with the struck out appeal and cannot be revived by an extension order
Costs
The applicant shall pay the costs of this application.
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.
The rule gives this Court power to extend the time limited for the doing of any act authorized or required by the rules whether before or after the expiration of such time.
The jurisdiction exercisable under that rule is discretionary and is unfettered.
That notwithstanding I am inclined to exercise my discretion in favour of extending time as prayed.
In the circumstances I order that time be extended for fourteen (14) days from the date hereof within which the applicant shall file and serve fresh notices appeal against the decisions of the superior court dated 22nd May 2000 and 18th, May 2001.
The applicant shall pay the costs of this application.
Issues in the judgment
#Internal inconsistency in dates: the notices of appeal are described as filed on 6th June 2000 and 4th June 2001, but later the notices are referred to as dated 29th May 2000 and 4th June 2001.
The application is by two applicants but the judgment alternates between plural and singular ('the applicants' and 'the applicant') when describing and ordering.
The case number of the application before the Court of Appeal is not stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Industrial Distributors Ltd & another v Jagdish Devshi Shah & another [2008] KECA 31 (KLR)", Case Analysis (2008). Civil Application (as stated in judgment; number not given). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/31/eng@2008-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.