Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application (Notice of Motion dated 11th April, 2013)· [2013] KECA 516 (KLR)

Kobil Petroleum Limited v Walter Edwin Ominde T/A Shelter Consult [2013] KECA 516 (KLR)

Court of Appeal
10 May 2013
2,005 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to extend time to appeal because the delay was long, unexplained, and no arguable appeal was shown.

What this practically means

#

Executive summary

#
This single-judge ruling of the Court of Appeal at Kisumu (Azangalala, JA) determined a Notice of Motion dated 11th April 2013 in which the applicant sought an extension of time to lodge a fresh Notice of Appeal and Record of Appeal, and leave to appeal out of time, against a High Court judgment and decree delivered by J.P. Karanja, J on 31st December 2010. The applicant's original Notice of Appeal, filed on 11th January 2011, was deemed withdrawn on 1st March 2013 after no record of appeal was filed. The respondent opposed, contending the application was a tactic to deny him access to decretal funds held in the parties' advocates' joint account. The court first dismissed two objections raised by the respondent: it held there is no provision in the Court of Appeal Rules for restoration of a Notice of Appeal deemed withdrawn, so the proper route is a fresh application under Rule 4; and it held that the former advocates ceased to be on record for the intended appeal once the notice was deemed withdrawn, so Order III Rule 9 of the Civil Procedure Rules and Rule 23 of the Court of Appeal Rules did not require leave for the new firm to act. On the merits, the court applied the settled Rule 4 factors: length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent. It found the delay inordinate and inexcusable, the blame cast on the former advocates implausible, no draft memorandum of appeal or triable issue disclosed, and the respondent prejudiced by continued denial of his judgment debt dating back to 1998. The application was dismissed with costs to the respondent. This disposition binds the High Court and subordinate tribunals on the procedural route and the Rule 4 factors.

Key legal issues

#
01

Correct procedural route after a Notice of Appeal is deemed withdrawn

Holding

The proper remedy is an application under Rule 4 for extension of time, not restoration, since the Rules provide no restoration mechanism.

Reasoning

The court reasoned that a Notice of Appeal deemed withdrawn leaves the party in the position of one who never intimated an appeal; the only avenue for challenging the High Court decision thereafter is the fresh route under Rule 4. The objection on competence was therefore dismissed.

p. 2
02

Locus standi of incoming advocates without leave

Holding

Leave to come on record was unnecessary because the former firm ceased to be advocates for the applicant in the intended appeal once its Notice of Appeal was deemed withdrawn.

Reasoning

The court held that Order III Rule 9 of the Civil Procedure Rules and Rule 23 of the Court of Appeal Rules apply where a party changes advocates in a pending matter. Since no appeal was on foot after the notice was deemed withdrawn, the applicant was free to instruct counsel of its choice for the application.

p. 2
03

Exercise of discretion under Rule 4

Holding

The application failed: the delay was inordinate and inexcusable, no arguable appeal was demonstrated, and the respondent would be prejudiced by continued denial of access to the decretal amount.

Reasoning

Applying the established factors, the court found the delay from August 2012 unexplained and implausible; the applicant blamed its advocates without evidence of follow-up or payment; it filed no draft memorandum of appeal nor indicated any triable issue; and the respondent had been kept out of his money since 1998. Granting the application would be speculation.

p. 4

Legal principles established

#
  • The discretion to extend time under Rule 4 is exercised considering the length of the delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent.
  • Where a Notice of Appeal has been deemed withdrawn, the aggrieved party's remedy is an application under Rule 4 for extension of time; no provision exists for restoration of the withdrawn notice.
  • Once a former advocates' Notice of Appeal is deemed withdrawn, the former firm is not advocate on record for the intended appeal, and Order III Rule 9 of the Civil Procedure Rules and Rule 23 of the Court of Appeal Rules do not apply; the party may be represented by counsel of its choice.
  • A deliberate omission by counsel is not a ground for exercising the court's discretion in favour of an applicant for extension of time.

Court orders

#
  1. 1.Dismissal of the objection that the application was incompetent
  2. 2.Dismissal of the objection on the locus standi of the incoming advocates
  3. 3.Dismissal of the Notice of Motion with costs to the respondent

Authorities

#

Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 23
  • Civil Procedure RulesOrder III Rule 9

Cases cited (2)

  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. 251 of 1997 (UR)
  • Muchugi Kiragu vs. James Muchugi Kiragu and Another
    Civil Application No. NAI. 356 of 1996 (UR)
On appeal from
High Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kobil Petroleum Limited v Walter Edwin Ominde T/A Shelter Consult [2013] KECA 516 (KLR)", Case Analysis (2013). Civil Application (Notice of Motion dated 11th April, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/516/eng@2013-05-10

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