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Court of AppealDismissedCivil Application No. NAI. of 2008 (Notice of Motion dated 20th March 2008, filed 27th March 2008)· [2009] KECA 382 (KLR)

Harris Horn Junior & Harris Horn Senior v Vijay Morjaria (Civil Application 64 of 2008) (Civ) [2009] KECA 382 (KLR)

Court of Appeal of Kenya
13 March 2009
JOJ. W. Onyango Otieno
2,918 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend appeal deadlines because the applicants had already filed a valid notice of appeal and could not explain a 140-day delay.

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 (Onyango Otieno, JA) dismissing the applicants' motion under rule 4 of the Court of Appeal Rules seeking extension of time to file a notice of appeal and a record of appeal from a High Court judgment (Muga Apondi J., Nakuru HCCC No. 285 of 2004, dated 16th June 2006) awarding the respondent Ksh.22,500,000 with interest and costs. The applicants had filed a timeous notice of appeal on 29th June 2006 but, on advice, attempted to withdraw it to pursue a review application, which Koome J. dismissed on 29th June 2007. The attempted withdrawal was never endorsed by the Court, so the notice of appeal remained valid. The Court refused the first prayer because a valid notice already existed - a second notice would be improper, and a single Judge lacks jurisdiction to deem the notice withdrawn under rule 82, following Paul Kanyi. On the second prayer the Court applied the Leo Sila Mutiso guidelines: although the delay up to the review ruling was excused as confusion, the applicants offered no explanation for the further period of over 140 days after 31st October 2007 until filing on 27th March 2008. Without a draft memorandum the Court could not conclude the intended appeal was arguable, and no prejudice argument was canvassed. The motion was dismissed with costs to the respondent. The judgment binds the High Court on the rule 4 principles and on the rule 82 point.

Key legal issues

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01

Whether a second notice of appeal can be ordered where a valid notice is already on record

Holding

No; extending time to file a second notice where a valid, unwithdrawn notice exists would be improper, and a single Judge lacks jurisdiction to deem the existing notice withdrawn under rule 82

Reasoning

The notice filed on 29th June 2006 was timeous and the attempted withdrawal was never endorsed by the Court as the Rules require, so it remained alive. Two notices supporting one appeal would be improper, and rule 82 deeming can only occur with the order of the full Court, not a single Judge.

p. 3
02

The principles governing extension of time under rule 4

Holding

The discretion is unfettered but must be exercised judicially, guided by the length of and reason for delay, arguability of the appeal, and prejudice to the respondent

Reasoning

Following Leo Sila Mutiso, the Court exercises an unfettered but judicial discretion. The period from the notice of appeal to the review ruling was excused as confusion, but the further nine-month delay was unexplained; counsel conceded no explanation existed for the 140-day period.

p. 3
03

Whether a draft memorandum of appeal is required to show arguability

Holding

Not required, but the Court needs some material indicating the intended grounds; on the material before it the Court could not say the intended appeal had merits

Reasoning

A draft memorandum is the easiest and best way, but grounds in the application or annexed proceedings may suffice. The Court perused the trial and review proceedings and, without deciding the merits, could not conclusively find the intended appeal arguable.

p. 4

Legal principles established

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  • A notice of appeal cannot be deemed to have been withdrawn under rule 82 except by order of the Court, and while a valid notice of appeal is extant no order can be made for filing a second notice of appeal
  • In an extension-of-time application under rule 4 the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent, though the list is not exhaustive
  • An applicant need not file a draft memorandum of appeal to demonstrate that an intended appeal is arguable; some material indicating the intended grounds suffices

Court orders

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  1. 1.The notice of motion dated 20th March 2008 and filed on 27th March 2008 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure CodeOrder 16 rules 4, 44 and 50
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 82

Cases cited (3)

  • Paul Kanyi and Another vs. George Mbugua Njoroge & Another
    Civil Application No. NAI. 288 of 2001
  • Dolphin Palms vs. Al Nasibh Trading Company Ltd and two others
    Civil Application No. 112 of 1999
  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. NAI. 251 of 1997 (unreported)
On appeal from
High Court of Kenya at Nakuru
Nakuru HCCC No. 285 of 2004 (review ruling by Koome J., 29th June 2007)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single Judge)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Harris Horn Junior & Harris Horn Senior v Vijay Morjaria (Civil Application 64 of 2008)  (Civ) [2009] KECA 382 (KLR)", Case Analysis (2009). Civil Application No. NAI. of 2008 (Notice of Motion dated 20th March 2008, filed 27th March 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/382/eng@2009-03-13

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