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Court of AppealPartially AllowedCivil Application No. Nai. 105 of 2010 (as arising from intended Civil Application No. 81 of 2010)

Kenya Commercial Bank Limited v Kenya Planters Co-operative Union [2010] KECA 302 (KLR)

Court of Appeal of Kenya
7 May 2010
3,292 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal let KCB file its appeal one day late, ruling that a one-day delay is not fatal when properly explained.

What this practically means

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Executive summary

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This was a single-judge application in the Court of Appeal by Kenya Commercial Bank Ltd under sections 3A and 3B of the Appellate Jurisdiction Act and rules 4 and 47 of the Court of Appeal Rules, seeking extension of time to file an application for leave to appeal (Civil Application No. 81 of 2010) that had been lodged one day late. The delay was attributed to the registry's rejection of a bound record in two colours and the intervening Easter holiday. The respondent opposed, arguing the reasons were implausible, no evidence of refusal by the registry was tendered, and the order sought to be appealed was not appealable. Nyamu, JA applied the settled Leo Sila Mutiso factors, holding that a one-day delay is not inordinate, the reasons were acceptable, the intended grounds of appeal were not frivolous, and the respondent would suffer no noticeable prejudice. The judgment is notable for its extended exposition of the overriding objective (O2) principle: the four Mutiso factors are not exhaustive, and sections 3A and 3B impose a statutory duty to give effect to the O2 principle, which prevails over conflicting rules. The court cautioned that counsel must lay a firm factual or legal basis for invoking the O2 principle, which does not excuse counsel's mistakes or abuse of process. The application was allowed in terms of prayers 1 and 2, the application deemed properly on record, with costs to abide the outcome.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the single day delay in filing the application for leave to appeal should be excused and time extended under rule 4
  2. 2.Whether the reasons for the delay (registry rejection of a two-colour bound record and the intervening Easter holiday) were plausible
  3. 3.How the overriding objective (O2) principle under sections 3A and 3B of the Appellate Jurisdiction Act interacts with the rule 4 discretion
  4. 4.Whether the applicant's intended appeal had arguable chances and whether the respondent would suffer prejudice

Key legal issues

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01

Extension of time under rule 4

Holding

The application was allowed: the one-day delay was not inordinate, the reasons were acceptable, the grounds were not frivolous and no noticeable prejudice would befall the respondent

Reasoning

Applying the Leo Sila Mutiso factors (length and reason for delay, chances of success, prejudice), the court found a one-day delay explained by the registry's rejection of a two-colour bound record and the Easter holiday to be neither inordinate nor frivolous. The memorandum of appeal raised non-frivolous grounds, and a one-day delay caused no noticeable prejudice. The rule 4 discretion is unfettered and not confined to the four listed factors.

p. 3
02

Relationship between the overriding objective and rule 4 discretion

Holding

The single judge is under a statutory duty, not merely a discretion, to give effect to the O2 principle when exercising rule 4 powers; where rules conflict with sections 3A and 3B, the statutory O2 principle prevails

Reasoning

Sections 3A and 3B are mandatory; rule 4 is discretionary. The court held the O2 principle represents the entire purpose of the Appellate Jurisdiction Act, so rules apply only subject to being O2 compliant and must be supplanted where they hinder justice. The court also obiter suggested that a reference to a full court under rule 54 may not be contemplated where a single judge discharges this statutory duty.

p. 4
03

Appealability of the order sought to be challenged

Holding

Whether an appeal lies is a matter for the appeal court; on an extension application the judge need only consider whether the intended appeal is arguable

Reasoning

The respondent argued the order was not appealable and that no formal application for leave had been made in the superior court. The judge held this objection goes to the appeal itself, not the extension application; Order 42 rule 2 provides that appeals lie with leave from orders made under the Rules, so the question was simply whether the intended application had a chance of success.

p. 3

Legal principles established

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  • A one-day delay in filing is not inordinate delay where adequately explained
  • In exercising rule 4 discretion the court must give effect to the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act, and where rules conflict with the statute the statute prevails
  • A party invoking the overriding objective must lay a firm factual or legal basis in the application; the O2 principle is not a shield for counsel's mistakes, lapses, negligence or abuse of process
  • An unwritten registry practice (such as requiring a record in one colour) cannot defeat a litigant's right to seek justice

Court orders

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  1. 1.Extension of time within which the applicant ought to have filed Civil Application No. 81 of 2010
  2. 2.Deeming of Civil Application No. 81 of 2010 as properly on record and filed within the extended time
  3. 3.Costs to abide the outcome of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rules 4 and 47 of the Court of Appeal Rules

Relief refused

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Costs of the application to the applicant

Costs were ordered to abide the outcome of the application rather than be awarded immediately

p. 5

Costs

Costs to abide the outcome of the application. It is so ordered.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I hereby allow the application dated 15th April 2010 in terms of prayers 1 and 2 of the application. In the result, Civil Application No. 81 of 2010 shall therefore be deemed to be properly on record.
p. 5Final orders - extension of time granted
while the four factors will continue to assist the Court in assessing whether it has discharged its duty under sections 3A and 3B, it is the considerations set out in the sections which take precedence and which must prevail
p. 3Precedence of the overriding objective over the four rule 4 factors
In the case of applications seeking the invocation of O2 principle a firm basis whether factual or legal must be laid and expressed in the application.
p. 4Duty of counsel to lay a basis for invoking the O2 principle
the requirement represents an unwritten rule which cannot be allowed to defeat the applicant's right to seek justice such as in this case.
p. 3Registry practice cannot defeat substantive justice
a delay of one day cannot by any standard be said to be inordinate
p. 3Short delay not inordinate

Issues in the judgment

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minor

Respondent's name is not stated in the body of the judgment as provided; only the applicant (Kenya Commercial Bank Ltd) and its counsel are named

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, "Kenya Commercial Bank Limited v Kenya Planters Co-operative Union [2010] KECA 302 (KLR)", Case Analysis (2010). Civil Application No. Nai. 105 of 2010 (as arising from intended Civil Application No. 81 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/302/eng@2010-05-07

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