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Court of AppealAllowedCivil Application No. Nai. 55 of 2014 (as inferred from the application dated 24th February 2014, lodged 3rd March 2014)· [2014] KECA 521 (KLR)

Samiyan Kaur Devinder Singh v Speedway Investment Limited & another [2014] KECA 521 (KLR)

Court of Appeal of Kenya
20 June 2014
RNR.N. Nambuye
3,250 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 gave a litigant more time to appeal because the court itself failed to notify her of the ruling date.

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 Nairobi, delivered by Nambuye JA on 20th June 2014, on an application to extend time for filing a notice of appeal. The applicant had sued in Nairobi High Court Civil Case No. 553 of 2010 seeking preservatory orders protecting her ownership of apartment No. C.6 on LR No. 330/667, which she claimed she purchased from the 1st respondent before he charged it to the 2nd respondent in a loan transaction without disclosing her interest. Ogolla J dismissed the interim application on 5th December 2013. The applicant's notice of appeal was filed out of time, and she applied under Rules 1(2), 42, 47 and 49 (with Rule 4 covered by the general enabling words) for extension of time and deeming of the notice. The respondents opposed, relying on Barclays Bank v Martha Karwirwa Antony on unexplained delay. The court set out the settled factors for Rule 4 applications: period and reason for delay, arguability, prejudice, effect on the administration of justice, compliance with time limits, resources, and public importance. It found the delay explained by the Registrar's failure to notify the parties of the delivery date of the reserved ruling and by the deponent of the supporting affidavit being outside the jurisdiction. The intended appeal was arguable on whether the trial judge could decline injunctive relief after observing possible fraud, and the respondents showed no prejudice beyond costs. The application was allowed: fourteen days to file and serve the notice of appeal, thereafter to proceed according to law, with costs of the application to abide the outcome of the intended appeal.

Key legal issues

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01

The test for extension of time under Rule 4 of the Court of Appeal Rules

Holding

The discretion under Rule 4 is unfettered but must be exercised judiciously, guided by the enumerated factors including length and reason for delay, arguability, prejudice, and the administration of justice.

Reasoning

The court synthesised prior authority to set out eight factors. Rule 4 is an enabling provision allowing the court to extend time on such terms as it thinks just. The discretion is unfettered but must be exercised judiciously, on sound reason, free from whim, caprice or sympathy, and in the interest of justice. Arguability is not mandatory; prejudice can be compensated by costs; and delay attributable to the court process itself weighs in favour of the applicant.

p. 4
02

Sufficiency of the explanation for the delay

Holding

The delay was explained: the Deputy Registrar never notified the parties of the delivery date of the reserved ruling and misinformed them, and the deponent of the supporting affidavit resided outside the jurisdiction.

Reasoning

Correspondence between the applicant's counsel and the Registrar showed that no notice of the delivery of the reserved ruling was served and that the Registrar erroneously stated the ruling had been delivered on a different date. That failure, uncontroverted by the Registrar or respondents, plus the deponent's absence from the jurisdiction, made the one-month delay excusable. Time was taken to run from 14th January 2014 when counsel complained to the Registrar.

p. 4
03

Arguability of the intended appeal and absence of prejudice

Holding

The intended appeal was arguable on the point that the trial judge found the 1st respondent's actions shrouded in mystery if not fraudulent yet declined injunctive relief; the respondents demonstrated no prejudice.

Reasoning

The applicant argued her proprietary rights crystallised before the loan transaction and that the trial judge's own fraud observations made refusal of preservatory orders inconsistent. The court found this arguable though not certain to succeed. The respondents neither agitated nor demonstrated prejudice, and any prejudice could be compensated by costs.

p. 5

Legal principles established

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  • The factors for granting extension of time under Rule 4 are: the period and reason for delay, chances of the appeal succeeding, degree of prejudice to the respondent, effect of the delay on public administration of justice, importance of compliance with time limits, resources of the parties, and whether the matter raises issues of public importance.
  • An arguable point need not be one which must succeed; it is enough that it warrants full argument, and only one arguable point suffices.
  • Where the court's own processes substantially contributed to the delay in filing a notice of appeal, it would be unfair and punitive to shut the litigant out by refusing an extension of time.
  • Where a delay exists but the applicant has been diligent, the intended appeal has merit and the extension would not prejudice the respondent, the court may still exercise its discretion in favour of the applicant.

Court orders

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  1. 1.Extension of time granted for the applicant to file and serve the notice of appeal
  2. 2.The applicant has fourteen (14) days from the date of the reading of the ruling to file and serve the notice of appeal
  3. 3.The applicant to thereafter proceed according to law
  4. 4.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Civil Procedure Rules (repealed)Order XXXIX Rules 1 and 9
  • Court of Appeal Rules 2010Rule 1(2)
  • Court of Appeal Rules 2010Rule 4
  • Court of Appeal Rules 2010Rule 42(1)
  • Court of Appeal Rules 2010Rule 47(1)
  • Court of Appeal Rules 2010Rule 49(1)

Cases cited (11)

  • Barclays Bank of Kenya Limited v Martha Karwirwa Antony
    [2010] eKLR
  • Paul Wanjohi Mathenge v Duncan Gichane Mathenge
    [2013] eKLR
  • ALS v CTS
    [2014] eKLR
  • Total Kenya Limited v Kenya Revenue Authority
    [2013] eKLR
  • Law Society of Kenya v Commissioner of Lands & 2 others
    [2003] eKLR (E&L)
  • Dickson Muricho Muriuki v Timothy Kagendo Muriuki and 6 others
    [2013] eKLR
  • African Airlines International Limited v Eastern and Southern African Trade and Development (PTA) Bank
    [2003] KLR 140
  • Githiaka v Nduriri
    [2004] 2 KLR 67
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. Nai 255 of 1997
  • Delphis Bank Limited v Recco Builders Limited and another
    [2005] KLR 346
  • Stanley Kangethe Kinyanjui v Jonny Ketter and five others
    Civil Application No. 31 of 2012 (UR)
On appeal from
High Court of Kenya, Milimani Commercial and Admiralty Division
Nairobi High Court Civil Case No. 553 of 2010
Jurisdiction invoked
Rules 1(2), 42, 47 and 49 of the Court of Appeal Rules 2010, with Rule 4 covered under 'all other enabling provisions of law'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samiyan Kaur Devinder Singh v Speedway Investment Limited & another [2014] KECA 521 (KLR)", Case Analysis (2014). Civil Application No. Nai. 55 of 2014 (as inferred from the application dated 24th February 2014, lodged 3rd March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/521/eng@2014-06-20

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