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Court of AppealDismissedApplication dated 15th August, 2008 (Court of Appeal, Eldoret)· [2009] KECA 114 (KLR)

Malel & another v Republic & 2 others (Civil Application 246 of 2008) [2009] KECA 114 (KLR)

Court of Appeal of Kenya
23 October 2009
1,265 words in judgment
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The bottom line

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The Court of Appeal refused to extend time for a late appeal because a one-year delay had no specific, credible reason behind it.

What this practically means

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Executive summary

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This is a single-Judge ruling of the Court of Appeal at Eldoret (Aganyanya, JA) on an application dated 15th August 2008 under rule 4 of the Court of Appeal Rules seeking extension of time to lodge a Notice and Record of Appeal out of time. The applicant sought to challenge a High Court judgment of Ibrahim, J. delivered on 12th March 2007. The applicant attributed the delay to financial constraint, deponed to by its advocate, Linah Chepkosgei Kigen, and, during submissions, counsel added that the applicant was unaware of the judgment date and was seeking security ordered for stay of execution. The 3rd respondent, through James M. Kithili, opposed, arguing the delay of about seventeen months was inordinate and the reasons were not properly deponed to. The court restated the settled factors for extension of time - length of delay, reason for delay, chances of success and prejudice - citing Mwangi v. Kenya Airways Ltd [2003] KLR 486, and held the list non-exhaustive since rule 4 confers an unfettered judicial discretion. It found the reasons specific neither in the affidavit nor in submissions: the financial-constraint deponement by counsel was hearsay, and the security sought was unconnected to filing the appeal. The delay of over one year was held extremely inordinate. The application was dismissed with costs on 23rd October 2009.

Key legal issues

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01

Factors for extension of time under rule 4

Holding

The court restated the four general factors and confirmed the list is not exhaustive, with discretion to be exercised judicially.

Reasoning

The court enumerated length of delay, reason for delay, chances of the appeal succeeding, and degree of prejudice to the respondent, citing Mwangi v. Kenya Airways Ltd, and held the judge may consider other relevant factors so long as the discretion is exercised judicially. At this stage the judge deals with process, not the substance of the application.

p. 2
02

Adequacy and specificity of reasons for delay

Holding

Reasons must be specific, not guesswork, and must come from the applicant personally; counsel's affidavit on the applicant's finances is hearsay.

Reasoning

The application's only deponed reason was financial constraint, sworn by the applicant's advocate rather than the applicant, amounting to hearsay. Other reasons emerged only in counsel's submissions, including unawareness of the judgment date and a search for security, the latter held unconnected to filing the notice or record of appeal.

p. 3
03

Whether the delay was inordinate

Holding

A delay of over one year from judgment to filing the application was extremely inordinate.

Reasoning

Judgment was delivered on 12th March 2007; even the original notice of appeal filed 14th May 2007 was out of time, and the application itself was only lodged on 20th August 2008. Without a valid reason, no reasonable tribunal would exercise discretion in favour of a party so late.

p. 3

Legal principles established

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  • When a reason is proposed to explain delay in filing an appeal, it must be specific and not based on guesswork; averments about a party's financial constraint must be deponed to by the party, not counsel.
  • Rule 4 confers an unfettered discretion on the single Judge, exercised judicially, and the list of extension-of-time factors is not exhaustive; a judge may consider any other relevant factor.
  • A delay of over one year in lodging a notice or record of appeal is inordinate and no reasonable tribunal would exercise its discretion in favour of such a party without valid reason.

Court orders

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  1. 1.Dismissal of the application dated 15th August, 2008 seeking extension of time
  2. 2.Costs of the application to the respondent(s)

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Civil Procedure RulesOrder XVIII Rule 3(1)

Cases cited (1)

  • Mwangi v. Kenya Airways Ltd
    [2003] KLR 486
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Malel & another v Republic & 2 others (Civil Application 246 of 2008) [2009] KECA 114 (KLR)", Case Analysis (2009). Application dated 15th August, 2008 (Court of Appeal, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/114/eng@2009-10-23

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