Daima Bank Limited (In Liquidation) v David Musyimi Ndetei [2011] KECA 47 (KLR)
The bottom line
#Kenya's Court of Appeal let a late appeal proceed, ruling that short delays explained by waiting for court documents should not kill a case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the single Judge (O'Kubasu, J.A.) exercised his discretion judicially in extending time for filing the record of appeal
- 2.Whether the delay of one to three months in filing the record of appeal was inordinate
- 3.Whether the full Court should interfere with the single Judge's exercise of discretion under rule 4
Key legal issues
#Interference with a single Judge's discretion on a reference to full court
The full Court will not interfere with a single Judge's exercise of discretion under rule 4 unless it is shown the Judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence or law, or the decision was plainly wrong.
The Court reiterated the Waluke v Wetangula principles that a single Judge acts on behalf of the whole Court when exercising the unfettered rule 4 discretion. It is not enough that the full bench would have reached a different result. On scrutiny of the single Judge's reasons, the Court found he applied the correct principles from Mwangi v Kenya Airways and acted judicially.
Whether a delay of one to three months was inordinate
A delay of one to three months, in the circumstances of the case, was not inordinate, and the single Judge was entitled to weigh the reasons for delay including the time taken to obtain certified proceedings and the certificate of delay.
The respondent argued there was an unexplained delay of at least three months, while the appellant maintained the overall delay did not exceed three months and was explained by the time taken to obtain proceedings, judgment and the certificate of delay. The Court found a delay of one to three months on these facts could not be characterized as inordinate, and that the grounds of appeal were not frivolous.
Application of the overriding objective to extension-of-time applications
Sections 3A and 3B of the Appellate Jurisdiction Act require the Court, since July 2009, to give effect to the overriding objective when exercising powers under its rules, including on rule 4 applications; doing so supported affirming the extension of time.
The Court noted that the 'ball game has changed' since July 2009 because the statutory overriding objective now governs the exercise of powers under the Appellate Jurisdiction Act. Applying that provision, the Court was satisfied the single Judge acted justly, given the limited delay and the arguable grounds of appeal affecting the banking industry.
Legal principles established
#- A single Judge exercising the unfettered discretion under rule 4 does so on behalf of the whole Court, and the full Court may only interfere if the single Judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence and law, or his decision was plainly wrong.
- The factors for extension of time under rule 4 (length of delay, reason for delay, chances of appeal succeeding, prejudice to respondent) are not exhaustive; the rule confers an unfettered discretion allowing consideration of any relevant factor.
- Since July 2009, in exercising any power under the Appellate Jurisdiction Act, the Court is statutorily required to give effect to the overriding objective under sections 3A and 3B.
- An applicant's right to pursue a fairly arguable appeal should not be lightly fettered; the demands of justice lean toward allowing the pursuit of the appeal.
Court orders
#- 1.The reference to full court is dismissed
- 2.Costs in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Milimani Commercial Courts
- H.C.C.C. No. 2198 of 2000
- Jurisdiction invoked
- Reference to full court from a decision of a single Judge under the Court of Appeal Rules (rule 4, Appellate Jurisdiction Act context)
Relief refused
#Respondent's challenge to the single Judge's decision extending time to file the record of appeal
The full Court found the single Judge exercised his discretion judicially and applied the correct principles
Costs
Costs in the intended appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The reference is accordingly dismissed. Costs in the intended appeal. It is so ordered.
first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted.
Rule 4 gives the single judge an unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed
We think a delay of say one to three months in the circumstances of this case cannot be said to have been inordinate.
Issues in the judgment
#The judgment contains inconsistent dates supplied by the parties for when the appellant obtained proceedings, judgment and certificate of delay; the respondent said proceedings were obtained on 23rd February 2010, the certificate of delay on 1st May 2010, while the appellant said certified copies were collected on 28th April 2010 and the certificate of delay on 24th May 2010, and the Court did not resolve the discrepancy.
The grounds in support of the application refer to the 'Respondent' making numerous applications that delayed typing of proceedings, although the respondent's advocate opposed the extension; the attribution appears internally inconsistent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daima Bank Limited (In Liquidation) v David Musyimi Ndetei [2011] KECA 47 (KLR)", Case Analysis (2011). Civil Appeal No. 171 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/47/eng@2011-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.