Kenya Breweries Limited v Lawrence Ndutu & 6000 Others [2014] KECA 212 (KLR)
The bottom line
#Kenya's Court of Appeal refused Kenya Breweries more time to appeal because it gave no valid reason for waiting nearly two years past the deadline.
What this practically means
#Executive summary
#Key legal issues
#Applicable criteria for extension of time under rule 4 of the Court of Appeal Rules
The governing test is that laid down in Leo Sila Mutiso v Rose Hellen Wangari Mwangi: length of delay, reason for delay, arguability of the appeal and prejudice to the respondent.
The Court identified rule 4 as the substantive avenue of access to the relief, with rules 41, 42 and 75(2) merely procedural. It applied the four Sila Mutiso ingredients to the facts, finding an unexplained delay of one year nine months and two days against the fourteen-day limit, no adequate reason, no demonstrated arguable point independent of a lapsed stay order, and prejudice to the respondents.
Effect of failure to annex a draft memorandum of appeal
While not mandatory, where the relied-upon arguability finding has lapsed (because the notice of appeal it rested on was withdrawn and struck out), the applicant must annex a draft memo or otherwise state the arguable point.
The applicant had relied on a prior stay decision holding multiple representation arguable, but that order lapsed with the withdrawal and striking out of the underlying notice of appeal. Since ingredient three is only 'possibly', absence of a draft memo is not fatal per se, but here the applicant offered nothing to establish arguability.
Conduct and prejudice of the applicant
The applicant's inconsistent conduct - supporting the respondents' right to counsel of choice yet seeking to appeal the very ruling permitting multiple representation - and the ongoing harm to retrenched plaintiffs constituted prejudice.
The applicant had opposed a stay on the basis of the parties' right to counsel of choice and left the multiple-representation issue to the High Court's discretion, only to seek to appeal after the notice of appeal it intended to ride on was struck out. Respondents, retrenched former employees, were dying or dropping out amid prolonged litigation.
Legal principles established
#- In deciding an application to extend time for appealing, the Court considers: the length of the delay; the reason for the delay; possibly the chances of the appeal succeeding; and the degree of prejudice to the respondent.
- An applicant for extension of time must offer a reasonable explanation for failure to lodge the notice of appeal within the fourteen-day period under rule 75(2); a party cannot simply ride on another party's notice of appeal.
- The Court's discretion under rule 4 is unfettered but must be exercised judicially, not on whim, sympathy or caprice.
Court orders
#- 1.The application for extension of time was dismissed
- 2.Costs of the application awarded to Mr. Namada who opposed the application
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 279 of 2003
- Jurisdiction invoked
- Rules 4, 41, 42 and 75(2) of the Court of Appeal Rules (extension of time to file Notice of Appeal and Record of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Breweries Limited v Lawrence Ndutu & 6000 Others [2014] KECA 212 (KLR)", Case Analysis (2014). Civil Application No. NAI 283 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/212/eng@2014-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.