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Court of AppealDismissedCivil Appeal No. 231 of 2005 (application under rule 4)· [2012] KECA 232 (KLR)

Consolidated Bank of Kenya Ltd v Samuel Okoth [2012] KECA 232 (KLR)

Court of Appeal of Kenya
27 January 2012
DAD. K. S. Aganyanya
1,172 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a 21-month delay in filing an appeal, blaming the applicant's lawyers for failing to follow up with the previous law firm.

What this practically means

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Executive summary

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This was an application under rule 4 of the Court of Appeal Rules, 2010 seeking leave to file a memorandum of appeal out of time, and to deem the memorandum filed on 18th April 2011 as properly filed, following a High Court judgment by Okwengu, J. dated 12th May 2009 in Civil Appeal No. 231 of 2005. A notice of appeal was filed within time, but the record of appeal due within 60 days under rule 82(2) was not lodged until about 1 year 9 months late. The applicant attributed the delay to a change of advocates, late certification of the proceedings and decree by the High Court, and a failure of notification from the Registrar. The respondent countered that counsel had in fact been notified that the typed proceedings were ready, and that the true cause was lack of due diligence, including incoming counsel's failure to follow up with former counsel. Aganyanya, JA held that the rule 4 discretion is wide and unfettered but must be exercised on the circumstances of each case. The nature of the alleged dispute with former advocates was not disclosed, and incoming counsel, taking over the matter by consent when the appeal was already 1½ years late, made no inquiry of the former firm before re-applying for proceedings that had long been typed and certified. The court accepted that counsel's lack of diligence caused the inordinate delay, noted the intended appeal faced an uphill task, and found the application unsuitable for the favourable exercise of discretion. The application was dismissed with costs on 27th January 2012.

Key legal issues

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01

Whether the inordinate delay of about 1 year 9 months in filing the record of appeal was satisfactorily explained

Holding

The delay was not satisfactorily explained. The dispute between the applicant and its former advocates was not disclosed, and incoming counsel failed to make a simple inquiry of the former advocates whether proceedings had been applied for or received.

Reasoning

The judgment was delivered on 12th May 2009 and a notice of appeal filed in time under rule 75, but the record of appeal due within 60 days under rule 82(2) was not filed until 18th April 2011. The explanation offered was a dispute with former advocates whose nature was not disclosed. Incoming counsel, having taken over by consent, did not inquire of the former firm whether proceedings had been requested, yet later discovered they had long been typed and former counsel notified. The court accepted the respondent's submission that counsel's lack of diligence caused the delay.

p. 3
02

Whether the applicant's intended appeal had prospects of success

Holding

Counsel for the respondent identified errors and omissions in the draft record of appeal indicating the appeal faced an uphill task, which weighed against the exercise of discretion in the applicant's favour.

Reasoning

The respondent's counsel 'punched holes' in the record of appeal to show the appeal had little chance of success. While not determinative on its own, the merits of the intended appeal combined with the unexplained inordinate delay and lack of diligence led the court to find the application unsuitable for the favourable exercise of its rule 4 discretion.

p. 3

Legal principles established

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  • Under rule 4 of the Court of Appeal Rules, the Judge has a wide and unfettered discretion to grant or refuse extension of time according to the circumstances of each application.
  • A party seeking extension of time must satisfactorily explain inordinate delay; lack of diligence by counsel, including incoming counsel's failure to make inquiries of former counsel, does not merit the exercise of the discretion in the applicant's favour.

Court orders

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  1. 1.The application for extension of time is dismissed with costs
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010 (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, "Consolidated Bank of Kenya Ltd v Samuel Okoth [2012] KECA 232 (KLR)", Case Analysis (2012). Civil Appeal No. 231 of 2005 (application under rule 4). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/232/eng@2012-01-27

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