CHARLES AGINA v SHIPMARC LTD & another [2008] KECA 161 (KLR)
The bottom line
#Kenya's Court of Appeal granted a litigant a second chance to appeal after his first appeal was struck out, ruling that a fresh extension of time could be allowed.
What this practically means
#Executive summary
#Key legal issues
#Factors governing extension of time under Rule 4
The discretion is unfettered but must be exercised upon reasons, guided by the four settled factors.
The Judge restated the long-standing Rule 4 jurisprudence from Leo Sila Mutiso and Patel v Waweru: the court considers the length of the delay, the reasons for it, the (possible) chances of the appeal succeeding, and the prejudice to the respondent. The factors are guides to a judicial discretion, not rigid tests, and must be applied to the facts of each application.
Effect of an appeal struck out by consent
Once an appeal is struck out, a party who still wishes to appeal must start the appeal process afresh, which requires an extension of time to file a fresh notice of appeal and record of appeal.
Relying on Kuwinda Rurinja & Company Limited v Kwinda Holdings Limited, the Judge held that a consent striking out did not extinguish the applicant's underlying right of appeal; the applicant had to seek fresh extension of time. The delay from 24 January 2008 to 3 April 2008 was attributable to putting matters in order and was not inordinate.
Arguability of the intended appeal
An arguable appeal need not be one that will definitely succeed; arguability suffices for extension of time.
The Judge found the intended appeal raised arguable issues, the applicant's earlier appeal having been thwarted only on technicalities. He cautioned, citing Patel v E.A. Cargo Handling Services Ltd, that an arguable appeal, like a triable issue, does not mean the appeal will necessarily succeed. Prejudice to respondents can be met by an award of costs.
Legal principles established
#- On a Rule 4 application the single Judge exercises an unfettered but reasoned judicial discretion, guided by the length of delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
Court orders
#- 1.Leave granted to the applicant to file a notice of appeal within seven (7) days from the date of the order
- 2.The applicant to lodge the record of appeal within thirty (30) days from the time the notice of appeal is filed
- 3.Costs of the application assessed at Kshs.10,000/= awarded to the respondent, payable within 30 days, in default execution to issue
- On appeal from
- High Court of Kenya, Mombasa
- null
- Jurisdiction invoked
- Rule 4 & 42 of the Court of Appeal Rules, made under section 5 of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CHARLES AGINA v SHIPMARC LTD & another [2008] KECA 161 (KLR)", Case Analysis (2008). Civil Application (Rule 4) arising from Civil Appeal No. 103 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/161/eng@2008-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.