NICHOLAS MAHIHU MURIITHI v NDIMA TEA FACTORY LIMITED & another [2009] KECA 202 (KLR)
The bottom line
#Kenya's Court of Appeal gave a litigant an extension of time after just a one-day delay in serving his appeal notice, but made him pay the other side's costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the one-day delay in serving the notice of appeal warranted extension of time under rule 4
Yes. Although the explanations offered (holidays, distance, counsel's oversight and indisposition) were not reasonable, the brevity of the delay justified the extension.
The Court applied the Mutiso factors. It found the explanations wanting: the holidays are not exempted days under rule 3; the distance between Nairobi and Eldoret was not shown to have actually caused the delay; and counsel's explanations were given only from the bar without an affidavit, which the Court does not act on. Nevertheless, since the delay was only one day, the Court was inclined to allow the application.
Whether the Court should consider the merits of the intended appeal
No. The Court deliberately overlooked the merits as a factor because commenting on them would conclusively determine the dispute and embarrass the bench hearing the appeal.
While the chances of the appeal succeeding are a possible factor under rule 4, the judge declined to weigh them given the nature of the litigation. Any substantive comment would effectively pre-judge the appeal and compromise the appellate bench that would eventually hear it. The extension therefore rested on the shortness of the delay alone.
Whether oral explanations from the bar can substitute for an affidavit explaining delay
No. Counsel's oversight and indisposition, raised only in submissions, could not be acted upon.
Counsel did not file an affidavit explaining the failure to serve the notice of appeal in time, denying the respondent the opportunity to respond. The Court stated it is not its practice to act on oral explanations from the bar in such applications, leaving it with no proper explanation from counsel for the delay.
Legal principles established
#- The matters for consideration on an application under rule 4 of the Court of Appeal Rules are the length of delay, the reason for delay, possibly the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- The Court will not act on oral explanations from the bar in applications of this nature; explanations for delay must be supported by affidavit.
- Public holidays such as Good Friday and Easter Monday are not exempted days from computation of time under rule 3 of the Court of Appeal Rules.
- A receiving order has the same effect as a bankruptcy order and renders a person ineligible for nomination as a director; a person subject to a receiving order lacks capacity to sue, any suit to be filed by the Official Receiver (as held by the superior court).
Court orders
#- 1.Extension of time to serve the notice of appeal such that the notice served on 15th April 2009 is deemed to have been served within time
- 2.Costs of the motion awarded to the respondent
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretionary extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Union of Post Primary Education Teachers v Leonard Rufus Ochieng & 3 others (Ex-parte Applicants) & Attorney General[2013] KEHC 6354 (KLR)2 May 2013applied
Cite this brief
#Cite this brief
Caselaw, "NICHOLAS MAHIHU MURIITHI v NDIMA TEA FACTORY LIMITED & another [2009] KECA 202 (KLR)", Case Analysis (2009). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/202/eng@2009-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.