Eres N. V. & another v Maina Murage & Co. Advocates [2014] KECA 824 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal where a lawyer's mistakes caused the delay, but made the company pay security first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted an extension of time to file and serve a Notice of Appeal against the decision of Ibrahim J. delivered on 20th September 2012
- 2.Whether the delay in filing the Notice of Appeal was inordinate and sufficiently explained
- 3.Whether the intended appeal is arguable and whether the respondent would suffer prejudice if the extension were granted
- 4.Whether the applicant's failure to disclose the parallel application to set aside Muya J.'s orders should disqualify the application
- 5.Whether a mistake by the applicant's advocate constitutes sufficient reason under Rule 4
Key legal issues
#Sufficiency of explanation for delay in filing Notice of Appeal
The delay was sufficiently explained. The applicant acted promptly after judgment by seeking leave (a now-unnecessary step), and the High Court's ruling granting leave outside the 14-day window compounded the problem. Counsel's wrong turns on points of law constitute a mistake which Rule 4 can accommodate.
The court traced the chronology: applications for leave were filed within 11 and 14 days of judgment; Muya J. took about 7 months to rule; his order to lodge the Notice within the 'prescribed time' ignored that the 14 days had passed. Relying on Madan JA's dictum in Belinda Murai, the court held counsel's blunder on a point of law was a pardonable mistake and the applicant had not gone to sleep, so the delay was excusable.
Effect of non-disclosure of a parallel application
The applicant's failure to disclose the application filed on 13th September 2013 seeking to set aside Muya J.'s orders did not disqualify it, as it was a parallel process not in conflict with the extension application and not motivated by ill design.
The respondent urged that the applicant lacked candour because it did not disclose the parallel application to review Muya J.'s orders. The court held that the filing did not affect the extension application, was not in conflict with it, and the omission was not motivated by any ill design; therefore nothing much turned on it and no prejudice arose.
Prejudice to the respondent and conditions on the extension
No prejudice was established beyond the contention that the applicant is a Belgian company with no known assets in Kenya; this was addressed by imposing a condition to deposit one-half of Kshs.57,793,600/= in a joint interest-earning account.
The only prejudice suggested was the respondent's claim that the applicant was a foreign company without known Kenyan assets. To secure the respondent's position should the appeal fail, the court conditioned the extension on the applicant depositing one-half of the previously ordered sum of Kshs.57,793,600/= into a joint interest-earning account within 30 days.
Legal principles established
#- Under Rule 4, an applicant must show that the delay was not inordinate and sufficiently explained, that the intended appeal is arguable, and that no prejudice would be caused to the respondent.
- A mistake by an advocate, including a blunder on a point of law, may amount to sufficient reason under Rule 4 for extension of time.
- The court's paramount consideration in an extension-of-time application is doing justice between the parties.
Court orders
#- 1.The application filed on 13th September 2013 is allowed
- 2.The applicant to file its Notice of Appeal within 7 days from the date of the order
- 3.The applicant to file the record of appeal within 14 days from the date of filing the Notice of Appeal
- 4.The leave is on condition that the applicant deposits one-half of Kshs.57,793,600/= in an interest earning account in the joint names of the parties' counsels within 30 days
- 5.The costs of the application to be borne by the applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- H.C. Misc. Appl. No. 459 of 2008 (ruling of Ibrahim J., 20th September 2012; leave ruling of Muya J., 29th May 2013)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Relief refused
#Costs of the application by the respondent
The court found the delays were occasioned by the applicants and ordered them to bear costs
Costs
The costs of this application shall be borne by the applicants as the delays herein have been occasioned by them.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of this is that I allow the application filed on 13th September, 2013 and order that the applicant do file their Notice of Appeal within 7 days from today's date and thereafter file the record of appeal within 14 days from the date of filing the Notice of Appeal.
This leave is on condition that the applicant deposits one-half of the sum of Kshs.57,793,600/= in an interest earning account in joint names of the respondent's counsel within 30 days from today.
The mistake of an advocate or legal adviser may amount to sufficient reason as per rule 4 of the Court of Appeal Rules
Having read all the cited authorities, what is uppermost in my mind is that it is important to do justice to all and at all times.
It was unfortunate that the High Court failed to acknowledge that the 14 days period of lodging a Notice of Appeal was long past.
Issues in the judgment
#Conflicting dates: the applicant is said to have filed its leave application on 1st October, 2012 in submissions but on 1st October, 2013 in the court's own summary of the historical background.
Internal contradiction on the respondent's leave application date: 4th October, 2013 in counsel's submissions versus 28th November, 2013 in the court's summary.
Inconsistent dates for the notice of appeal filed after the leave ruling: 5th June, 2012 in submissions versus 5th June, 2013 elsewhere; also Muya J.'s ruling dated 29th May, 2013 is at one point referred to as orders of 29th September, 2012.
Deposition refers to a notice of appeal filed 'pursued to Muya's J. Orders on 3rd June, 2013' while the court later records it as lodged on 5th June, 2013.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eres N. V. & another v Maina Murage & Co. Advocates [2014] KECA 824 (KLR)", Case Analysis (2014). Civil Application (Mombasa) — Notice of Motion dated 10th September, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/824/eng@2014-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.