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Court of AppealDismissedNot stated in the judgment· [2011] KECA 133 (KLR)

Joseph Oyula v Ramji Devji Vekaria [2011] KECA 133 (KLR)

Court of Appeal of Kenya
23 September 2011
EOE. O. O'Kubasu
1,243 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed an extension of time application because the litigant gave no reason for a two-month delay in restarting his appeal.

What this practically means

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Executive summary

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This was a single-judge application under Rule 4 of the Court of Appeal Rules seeking extension of time to file and serve a notice of appeal and record of appeal. The applicant's earlier civil appeal had been struck out by the Court of Appeal on 25 March 2011 as incompetent because the record of appeal was filed out of time. The applicant filed the present application on 25 May 2011, two months later, relying on his counsel's submissions and three decisions of the Court. The respondent opposed, pointing out that nothing explained the two-month delay in bringing the fresh application, so the Court had no material on which to exercise its discretion. O'Kubasu JA restated the settled guidelines for Rule 4 applications - the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent - and endorsed the principle that a litigant whose appeal is struck out may restart the appellate process but must come to court promptly. His Lordship held that the relevant delay ran from the striking out of the earlier appeal, that no explanation at all had been given for the 60-day delay, and that the applicant's account of the events leading to the earlier striking out was irrelevant. It was not enough to attribute the delay to the advocate's mistake. Applying the Privy Council's decision in Ratman v Cumarasamy, the Court held that the rules must prima facie be obeyed and extension requires material on which discretion can be exercised. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether an applicant under Rule 4 must explain delay incurred in restarting the appeal process after a prior appeal is struck out

Holding

Yes. After an appeal is struck out, the applicant must satisfy the court that the fresh application was made without undue delay; unexplained delay of two months defeats the application.

Reasoning

The Court treated the striking out of the earlier appeal as requiring the applicant to start afresh, so the relevant delay ran from 25 March 2011 to the filing of the application on 25 May 2011. Counsel's narrative of events leading to the earlier striking out was irrelevant; no explanation for the 60-day delay was offered. Following Ratman v Cumarasamy and the Rule 4 guidelines, in the absence of material on which to exercise discretion, the application failed.

p. 2
02

Whether an advocate's mistake suffices as a reason for delay

Holding

No. It is not enough to say the delay was the mistake of the advocate on record.

Reasoning

The Court held that blaming the advocate on record does not discharge the applicant's burden of explaining the delay. The applicant's counsel took the Court through earlier events culminating in the striking out of the prior appeal, but the Court found this irrelevant; what was required was a reason for the two-month delay in filing the fresh application, which was never given.

p. 3

Legal principles established

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  • A litigant whose appeal has been struck out may restart the appellate process, but must come to court promptly for an extension of time.
  • The four factors on an application under Rule 4 are: length of delay, reason for delay, chances of the appeal succeeding, and degree of prejudice to the respondent.
  • The rules of court must prima facie be obeyed; extension of time requires material on which the court can exercise its discretion, otherwise a party in breach would have an unqualified right to extension.

Court orders

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  1. 1.The application for extension of time be and is hereby dismissed with costs to the respondent
On appeal from
High Court (ruling appealed against; court not expressly named)
Not stated
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "Joseph Oyula v Ramji Devji Vekaria [2011] KECA 133 (KLR)", Case Analysis (2011). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/133/eng@2011-09-23

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