John Gakure & 148 others v Dawa Pharmaceutical Co. Ltd. & 7 others [2010] KECA 89 (KLR)
The bottom line
#Kenya's Court of Appeal allowed 149 former employees to file their appeal late, confirming that a notice of appeal is not automatically withdrawn without a court order.
What this practically means
#Executive summary
#Key legal issues
#Whether rule 82(a) automatically withdraws a notice of appeal upon expiry of the 60-day period without a court order
No court order deeming the notice withdrawn existed; the respondents' argument was rejected. The court adopted the Dolphin Palms line of authority, as endorsed by the full court in the Fakir Mohamed reference.
The judge traced conflicting single-judge and full-bench decisions: Kamau Kibunja held withdrawal automatic; Bullion Bank, Dolphin Palms and the full court on reference held a court order necessary. The full court in the Fakir Mohamed reference approved following Dolphin Palms. A construction deeming automatic withdrawal would render rule 81's certificate-of-delay mechanism and the amended rule 80 strike-out procedure nonsensical.
Whether the explanation for the delay sufficed to warrant extension under rule 4
The delay in filing the bespeaking letter and obtaining certified copies was excused and attributed to an advocate's office mix-up, but the two-month delay before filing the application was found unsatisfactory; the application was nonetheless allowed on the strength of arguability and absence of real prejudice.
The court accepted, giving the benefit of doubt, that a clerk's omission caused the letter not to be filed, and excused the delay to 9th October 2007 when copies were supplied. The explanation for the subsequent two months was evasive and lacking candour. However, since the intended appeal was not frivolous and prejudice could be met by security for costs, the discretion tilted towards allowing the application, subject to strict compliance conditions.
Arguability of the intended appeal and prejudice to respondents
The intended appeal was not frivolous; the impugned ruling rested on untested decisions whose reconsideration by the full court could develop jurisprudence, and the alleged prejudice of incurring costs did not bar extension.
The single judge expressed only a prima facie view. The superior court's striking-out of the constitutional petition was based on precedents not tested on appeal. On prejudice, the applicants had not been declared paupers, and the respondents had recourse to security for costs if genuinely apprehensive about costs. Both factors weighed in favour of allowing the application.
The nature and limits of affidavits
Affidavits must state facts on oath, not legal arguments or expressions of opinion.
The applicants' further affidavit of 44 paragraphs was largely devoted to arguing the merits and observations about a respondent's alleged admission of indebtedness. The court deprecated this practice, observing that an affidavit is a statement of facts on oath. This observation is obiter.
Legal principles established
#- A notice of appeal is not automatically deemed withdrawn under rule 82(a); the court must be moved to make such an order.
- The Rule 4 discretion is unfettered but must be exercised on relevant factors, including the period of and reason for delay, arguability of the appeal, and prejudice to the respondent.
- An omission by an advocate's office may be excused and not visited on the client, but the entire period of delay must be explained.
- A single judge may only express a prima facie view on the merits of an intended appeal; only the full court can decide it finally.
Court orders
#- 1.Leave granted to the applicants to file and serve the record of appeal
- 2.The record of appeal to be filed and served on all respondents through their advocates on record within 14 days of the ruling
- 3.The applicants to bear the costs of the application, to be agreed or taxed and paid within 14 days of such agreement or taxation
- 4.In default of compliance with orders 2 and 3, the application to stand dismissed with costs without any need for a further court order
- On appeal from
- High Court of Kenya
- Originating Summons (constitutional reference) - number not stated
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, read with sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Gakure & 148 others v Dawa Pharmaceutical Co. Ltd. & 7 others [2010] KECA 89 (KLR)", Case Analysis (2010). Civil Application (rule 4) arising from an intended appeal against High Court ruling of 2nd March 2007 in an Originating Summons. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/89/eng@2010-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.