National Bank of Kenya Limited v Allan George Njogu Residences Limited [2014] KECA 720 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal because the missed procedural step was an honest mistake fixed quickly and caused no real harm to the other side.
What this practically means
#Executive summary
#Key legal issues
#Delay in applying for enlargement of time
The applicant moved the Court within about ten days of discovering its omission, and that is sufficient.
The application was filed on 22nd October 2013, ten days after the record of appeal was lodged, and the discovery of the failure to serve the bespeaking letter was unchallenged. The judge held that a party should only be held to account for dilatoriness after discovery of the error, not for failing to discover it earlier.
Non-compliance with Rule 82(2)
Strictly speaking the rule was not complied with because the request was not formally served on the respondent, but the failure was curable by enlargement of time.
The request for proceedings was made within time and in writing, but was not formally and specifically served on the respondent, necessitating the application. However, the letter had been brought to the respondent's attention through a further affidavit within thirty days, depriving the respondent of any claim of surprise or prejudice.
Prejudice to the respondent
No prejudice was established: the respondent knew of the request, the decretal sum of Kshs 5 million was paid under a bank guarantee, and no Rule 84 striking-out application had been made.
The respondent received the bespeaking letter as an annexture to a further affidavit filed within thirty days; the decretal sum had been paid as ordered; the record of appeal had been filed; and the respondent never moved under Rule 84 to strike out the record, the thirty-day window having expired.
Legal principles established
#- The criteria for extending time under Rule 4 are the length of delay, the reason for delay, the chances of the appeal succeeding, and prejudice to the respondent.
- A party will not be penalised for failing to discover its own errors earlier; accountability attaches only to delay after discovery.
- The benefit of excluding time under Rule 82 is lost where the request for proceedings is not copied to the respondent.
Court orders
#- 1.The motion dated 22nd October 2013 is allowed and time is enlarged
- 2.The notice of appeal lodged on 25th April 2013 is deemed properly on record
- 3.The record of appeal filed on 10th October 2013 is deemed properly on record
- 4.Costs shall be in the appeal
- On appeal from
- High Court
- Not stated
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time before a single Judge)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Bank of Kenya Limited v Allan George Njogu Residences Limited [2014] KECA 720 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/720/eng@2014-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.