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Court of AppealPartially AllowedCivil Application (Kisumu) - unstated number· [2008] KECA 190 (KLR)

Abdi Nuru Omar & another v Mohamed Aden Abdi [2008] KECA 190 (KLR)

Court of Appeal of Kenya
27 June 2008
EOE. O. O'Kubasu
1,777 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed late filing of an appeal because genuine settlement talks explained the delay, and the other side faced no prejudice.

What this practically means

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Executive summary

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This was a single-Judge application under Rule 4 of the Court of Appeal Rules seeking leave to file a Notice of Appeal and Record of Appeal out of time against a judgment of Warsame, J delivered on 10 February 2006 in Kisumu High Court Civil Suit No. 304 of 1999. The applicants' earlier appeal had been struck out on 30 November 2007, requiring the appeal process to be started afresh. After the striking out, the applicants pursued an out-of-court settlement, offering Shs.500,000/=, which the respondent's advocates rejected by letter of 14 April 2008; the application was filed within two weeks of that rejection. Applying the settled Rule 4 factors - length and reason of delay, chances of the appeal succeeding, and prejudice to the respondent - O'Kubasu, JA held the delay was adequately explained by the genuine settlement efforts, that the intended appeal raised arguable issues (jurisdiction and the treatment of special damages, as found in this Court's ruling of 19 October 2006), and that the respondent would suffer no prejudice since he had already withdrawn the Shs.500,000/= held in a joint advocates' account after the stay lapsed upon the appeal being struck out. The court allowed the application, ordered the notice of appeal to be filed within seven days and the record within thirty days thereafter, and awarded the respondent costs of the application assessed at Shs.10,000/=.

Key legal issues

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01

Principles governing extension of time under Rule 4

Holding

The court applies the settled factors: length of delay, reason for delay, chances of the appeal succeeding, and degree of prejudice to the respondent.

Reasoning

The single Judge restated the principles from Patel v Waweru quoting Leo Sila Mutiso v Rose Hellen Wangari Mwangi, and applied each factor to the facts: the applicants pursued an out-of-court settlement after their earlier appeal was struck out, filed the application within two weeks of the settlement's rejection, the intended appeal raised arguable issues already identified in the 2006 ruling, and the respondent would suffer no prejudice having withdrawn the Shs.500,000/= deposit.

p. 2
02

Reason for delay and settlement negotiations

Holding

Genuine pursuit of an out-of-court settlement, evidenced by correspondence and an offer of Shs.500,000/=, adequately explained the delay.

Reasoning

The applicants' earlier appeal was struck out on 30 November 2007; they pursued settlement, and their offer of Shs.500,000/= was rejected by the respondent's advocates by letter of 14 April 2008. The application was filed within two weeks of that rejection, and the delay from 30 November 2007 to 11 December 2007 was explained by the genuine belief the dispute would settle amicably.

p. 3

Legal principles established

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  • An application under Rule 4 is an exercise of the single Judge's unfettered discretion, which must nonetheless be exercised judicially and upon reasons, having regard to the length of and reason for delay, the chances of the appeal succeeding and prejudice to the respondent.
  • Where an appeal is struck out, a party who wishes to appeal must start the appeal process afresh by seeking extension of time to file a notice of appeal and lodge the record of appeal.
  • An arguable appeal does not mean the appeal shall definitely succeed.

Court orders

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  1. 1.Leave granted to the applicants to file a Notice of Appeal and a Memorandum and Record of Appeal out of time
  2. 2.Applicants to file a notice of appeal within seven (7) days from the date of the ruling
  3. 3.Applicants to lodge the record of appeal within thirty (30) days from the time the notice of appeal is filed
  4. 4.Costs of the application assessed at Shs.10,000/= awarded to the respondent, payable within 30 days in default execution to issue

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 41 (as amended by Rule 2 of the Court of Appeal (Amendment) Rules 1998)
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (4)

  • PATEL V WAWERU AND 2 OTHERS
    [2003] KLR 361
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. NAI. 251 of 1997
  • KUWINDA RURINJA & COMPANY LIMITED V KWINDA HOLDINGS LIMITED & OTHERS
    Civil Application No. Nai. 243 of 1998 (unreported)
  • PATEL V E. A. CARGO HANDLING SERVICES LTD
    [1974] E.A. 75
On appeal from
High Court of Kenya
Kisumu High Court Civil Suit Number 304 of 1999
Jurisdiction invoked
Rules 4, 41, 42 and 43 of the Court of Appeal Rules

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, "Abdi Nuru Omar & another v Mohamed Aden Abdi [2008] KECA 190 (KLR)", Case Analysis (2008). Civil Application (Kisumu) - unstated number. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/190/eng@2008-06-27

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