Ashit Patani & 2 others v Dhirajlal V. Patani & 2 others [2014] KECA 316 (KLR)
The bottom line
#Kenya's Court of Appeal gave the Patani family more time to appeal, ruling that delays can be excused when reasonably explained and that no security for costs is required.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of 26 days from judgment (14 days past the rule 75(2) deadline) was satisfactorily explained
The delay was satisfactorily explained: the judgment contained typographical errors and was only released on 7th August 2014, and counsel needed time to consult clients before deciding to appeal.
The court found the explanation reasonable, noting the respondents themselves only obtained a copy of the judgment twelve days after delivery. Counsel's need to digest the judgment and consult clients before deciding whether to appeal was plausible because not every court decision is appealable. The applicants moved to regularise their position within fourteen days of receiving the judgment. This discretion-based finding applied the Mutiso factors.
Competence of an application supported by an affidavit of the advocate on record
The application was competent because the advocate deposed only to routine, non-contentious matters within his personal knowledge.
The respondents argued the application was incurably defective because the supporting affidavit was sworn by the advocate rather than the applicants. The court rejected this, holding that where the advocate deposes only to routine matters within his knowledge - such as when the judgment was delivered and when copies were accessed - the affidavit is proper and the application is competent.
Whether security for costs may be imposed as a condition for extending time
Security for costs is not a permissible condition under rule 4; the rule requires only a decision to grant or withhold the discretion on the established principles.
Both the 1st and 2nd respondents and the 3rd respondent sought security pegged to the value of the suit property. The court held that security for costs never featured as a condition in the case law cited under rule 4, and the only relevant considerations are the grant or withholding of the discretion, attendant costs limited to the particular proceedings, and a compliance timeline not exceeding the period stipulated by the rules.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary and is guided by four factors: length of delay, reasons for delay, chances of the appeal succeeding (possibly), and prejudice to the respondent.
- Demonstrating the arguability of an intended appeal is not a mandatory consideration in an extension-of-time application.
- Annexure of a draft memorandum of appeal or grounds of appeal is not a mandatory requirement under rule 43 of the Court of Appeal Rules in such an application.
- Security for costs cannot be imposed as a condition for the grant of extension of time under rule 4.
- An advocate on record may depose to a supporting affidavit in an interlocutory application so long as he confines himself to routine matters within his personal knowledge and not contentious matters.
Court orders
#- 1.Prayer 1 of the applicants' application dated 20th August 2014 allowed - leave granted to file the notice of appeal out of time / extension of time granted
- 2.Prayer 2 (deeming the notice of appeal duly filed and properly on record) declined
- 3.Applicants granted fourteen (14) days from the date of the reading of the ruling to lodge the notice of appeal
- 4.Costs of the application to the respondents
- On appeal from
- High Court of Kenya, Environment and Land Court at Nairobi
- ELC Suit No. 613 of 2009
- Jurisdiction invoked
- Rules 1(2), 4 and 42 of the Court of Appeal Rules (inherent power and substantive rule on extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ashit Patani & 2 others v Dhirajlal V. Patani & 2 others [2014] KECA 316 (KLR)", Case Analysis (2014). Civil Application No. Nai 255 of 1997 (UR) - application dated 20th August 2014 (arising from Nairobi ELC Suit No. 613 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/316/eng@2014-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.