Kobil Petroleum Limited v Walter Edwin Ominde T/A Shelter Consult [2013] KECA 516 (KLR)
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
#Key legal issues
#Correct procedural route after a Notice of Appeal is deemed withdrawn
The proper remedy is an application under Rule 4 for extension of time, not restoration, since the Rules provide no restoration mechanism.
The court reasoned that a Notice of Appeal deemed withdrawn leaves the party in the position of one who never intimated an appeal; the only avenue for challenging the High Court decision thereafter is the fresh route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.
Locus standi of incoming advocates without leave
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the former firm ceased to be advocates for the applicant in the intended appeal once its Notice of Appeal was deemed withdrawn.
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 Since no appeal was on foot after the notice was deemed withdrawn, the applicant was free to instruct counsel of its choice for the application.
Exercise of discretion under Rule 4
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.
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.
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- Where a Notice of Appeal has been deemed withdrawn, the aggrieved party's remedy is an application under Rule 4 for extension of time; no provision exists for restoration of the withdrawn notice.
- Once a former advocates' Notice of Appeal is deemed withdrawn, the former firm is not advocate on record for the intended appeal, and Order III Rule 9 of the Civil Procedure Rules and Rule 23 of the Court of Appeal Rules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.Dismissal of the objection that the application was incompetent
- 2.Dismissal of the objection on the locus standi of the incoming advocates
- 3.Dismissal of the Notice of Motion with costs to the respondent
- 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.