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Court of AppealAllowedNotice of Motion dated 4th July, 2014 (arising from Kitale HCCC No. 59 of 2011)· [2014] KECA 431 (KLR)

Eldoret Express Co. Ltd & another v Silvance Ojwang Odero [2014] KECA 431 (KLR)

Court of Appeal of Kenya
23 July 2014
479 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal excused a three-day delay in filing an appeal where a valid explanation existed, the appeal was arguable, and no one was prejudiced.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu delivered by Onyango Otieno, JA, on an application under Rule 4 of the Court of Appeal Rules for extension of time. The applicants, Eldoret Express Co. Ltd and Enock Kiptoo, were aggrieved by a judgment of Karanja, J. in Kitale HCCC No. 59 of 2011 delivered on 17th June 2014 and intended to appeal. They failed to lodge a Notice of Appeal within the fourteen days required by Rule 75, explaining through the affidavit of Erastus Mwaniki that their advocate inadvertently filed the advocates' file away. The application was filed on 4th July 2014, a delay of only three days. The court accepted the explanation, noting that while such advocate conduct should be discouraged, it can happen. It also found the annexed draft Memorandum of Appeal arguable and, the respondent having been served but absent and unresponsive, saw no prejudice to the respondent. Exercising its unfettered discretion, the court granted the extension: ten days to file the Notice of Appeal and sixty days thereafter to file the record of appeal. No order was made as to costs. This interlocutory ruling does not disturb the High Court judgment; the intended appeal remains to be heard.

Key legal issues

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01

Whether inadvertent misfiling of the advocates' file is a sufficient explanation for a three-day delay in filing Notice of Appeal under Rule 75

Holding

Yes; though such advocate conduct should be discouraged, it can happen, and the explanation was accepted for the three-day delay.

Reasoning

The court accepted the sworn explanation that the applicants' advocate inadvertently filed the file away, causing the failure to lodge a Notice of Appeal within the fourteen days required by Rule 75. The delay was only three days, which the court found acceptable. The court noted such advocate actions should be discouraged but are capable of occurring.

p. 2
02

Arguability and prejudice

Holding

The draft Memorandum of Appeal raised arguable matters, and the absent, non-responding respondent would suffer no prejudice.

Reasoning

The court perused the annexed draft Memorandum of Appeal and was persuaded the matters raised were arguable. The respondent, though served, neither attended nor filed a replying affidavit, so the court saw no prejudice from granting the extension.

p. 2

Legal principles established

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  • In exercising discretion under Rule 4, the court considers explanation of the delay, arguability of the intended appeal, and prejudice to the respondent, and the discretion is unfettered once those matters are demonstrated.

Court orders

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  1. 1.Leave granted to lodge Notice of Appeal out of time, to be filed within Ten (10) days of the date of the ruling
  2. 2.Record of Appeal to be filed within sixty (60) days from the date of filing the Notice of Appeal
  3. 3.No order as to costs of the Notice of Motion

Authorities

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Legislation

  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 4
On appeal from
High Court of Kenya
Kitale HCCC No. 59 of 2011
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Eldoret Express Co. Ltd & another v Silvance Ojwang Odero [2014] KECA 431 (KLR)", Case Analysis (2014). Notice of Motion dated 4th July, 2014 (arising from Kitale HCCC No. 59 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/431/eng@2014-07-23

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