Jacqueline Amolo Odongo& Rosemary Akinyi Odongo t/a Jackie Distributors v Cooperative Bank Of Kenya Limited [2014] KECA 252 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal because the applicant never explained nearly a year of delay, and the other side had already paid the judgment.
What this practically means
#Executive summary
#Key legal issues
#Guiding parameters for extension of time under Rule 4
The decision is discretionary; the court considers the length of the delay, the reason for it, the arguability of the appeal and prejudice to the respondent, but the list is not exhaustive.
The court restated the classic factors from Leo Sila Mutiso and Mwangi v Kenya Airways, and endorsed Mongira v Mukaria that the list is a guide only. Rule 4 confers an unfettered discretion which may take into account any other relevant facts, provided the discretion is exercised judicially and on a reasonable factual or legal basis rather than sympathy or caprice.
Whether blameworthy conduct of counsel excuses unexplained delay
While an error of counsel should not necessarily be visited on the client, counsel-blame cannot explain delay occurring while current counsel is on record; the applicant must herself explain each period of delay.
The applicant explained only the first delay (16 days late filing of the Notice of Appeal) by reference to her former advocate. The subsequent delay of about eight months before the High Court application and a further two months before this application were unexplained, and the same firm was then on record, so the delay could not be shifted to the former advocate.
Whether the intended appeal was arguable
The applicant failed to demonstrate that the award of damages was wrong in principle or miscalculated, so the appeal was not shown to be arguable.
The claim was for damages for loss of business and profit. The material placed before the single judge did not show in what way the damages awarded (Kshs 1,147,980.20 against a claim of about Kshs 25 million) should have been assessed differently, so the 'chances of the appeal succeeding' factor did not favour the applicant.
Legal principles established
#- Rule 4 discretion is broad and not confined to the enumerated factors, but must be exercised judicially on reasonable basis, not out of sympathy or caprice.
- An applicant for extension of time must explain the entire period of delay; unexplained delay, not attributable to counsel, weakens the application.
- Delay in pursuing one's rights prejudices a respondent who has settled the decree in the belief that the matter is closed.
Court orders
#- 1.The Notice of Motion seeking extension of time to file an appeal is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacqueline Amolo Odongo& Rosemary Akinyi Odongo t/a Jackie Distributors v Cooperative Bank Of Kenya Limited [2014] KECA 252 (KLR)", Case Analysis (2014). Notice of Motion under Rule 4 of the Court of Appeal Rules (application for extension of time to appeal against judgment of Havelock, J.). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/252/eng@2014-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.