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Court of AppealDismissedCivil Application No. NAI 98 of 2013· [2014] KECA 835 (KLR)

Aviation Cargo Support Limited v St. Mark Freight Services Limited

Court of Appeal
14 February 2014
GKG.B.M. Kariuki
2,882 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time for filing an appeal record because a six-month, unexplained delay showed the appellant was careless, not diligent.

What this practically means

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Executive summary

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Aviation Cargo Support Limited applied, under section 7 of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules, for leave to file and serve its Record of Appeal out of time in an intended appeal against a High Court judgment (Havelock, J, 26 September 2012) awarding St. Mark Freight Services Limited US Dollars 74,831.96 and interest. The applicant filed a notice of appeal in time on 2.10.2012 and applied for certified proceedings on 27.9.2012, but the proceedings were typed and certified by 27.11.2012, before the 60-day period for lodging the record expired on 2.12.2012. The applicant collected the proceedings on 19.12.2012 without explaining the delay, did not draw the draft decree itself (leaving it to the respondent), and only moved the Court on 13.5.2013 - over six months after the period expired. Kariuki, JA, sitting as a single Judge in chambers, held that extension of time is discretionary and requires an applicant to show the delay is not inordinate or to give a plausible explanation for it. The delay was inordinate and unexplained; the applicant was indolent and failed to take the initiative to comply with the rules. The Court held that even a meritorious appeal does not warrant extension where inordinate delay is wholly unexplained, and that the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act does not facilitate extension in such circumstances. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the delay in filing the record of appeal was inordinate and explained

Holding

The delay of over six months was inordinate and unexplained; the applicant knew proceedings were certified by 27.11.2012 yet did not move the Court until 13.5.2013

Reasoning

The proceedings were typed and certified by 27.11.2012, before the 60-day period expired on 2.12.2012. The applicant gave no reason for failing to collect them or to apply for extension after 2.12.2012, waiting over six months. Indolence, including failure to draw the draft decree, disentitled it to the discretionary relief.

p. 4
02

Whether the proviso to rule 82(1) excluding time for preparation of proceedings applied

Holding

It did not, because the proceedings were typed and certified before the 60-day period ran out, so no certificate of delay was necessary

Reasoning

The applicant applied for proceedings timeously, but since they were certified by 27.11.2012, before the 2.12.2012 deadline, there was no period requiring certification by the Registrar and the proviso was not engaged.

p. 3
03

Whether Article 159(2)(b) and the overriding objective favoured extension

Holding

No; substantive justice does not permit granting extension where inordinate delay is unexplained

Reasoning

The Court acknowledged its policy of latitude in interpreting rules to facilitate access to justice, but held the overriding objective cannot be used to grant extension where the applicant has not satisfactorily explained inordinate delay.

p. 4

Legal principles established

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  • Extension of time is discretionary and requires the applicant to show the delay is not inordinate or to give a plausible explanation for it
  • Even a meritorious appeal will not be admitted out of time where the delay is inordinate and unexplained
  • The overriding objective does not override the requirement to explain inordinate delay in extension-of-time applications

Court orders

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  1. 1.Dismissal of the notice of motion dated 9th May 2013 presented on 13.05.2013
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Appellate Jurisdiction ActSection 3A(1)
  • Appellate Jurisdiction ActSection 3B(1)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 82(1)
  • Court of Appeal RulesRule 82(2)
  • Civil Procedure RulesOrder 21 Rule 8(2)
  • Constitution of KenyaArticle 159(2)(b)

Cases cited (3)

  • Christopher Mugo Kimotho v The Hon. the Attorney General
    Civil Application No. 131 of 2008

    Cited by applicant on extension of time; court held it did not support the applicant as the shorter delay there was unexplained

  • James Kamau Gachau v Dorcas Wairimu Kamau
    Civil Application No. 48 of 2009

    Cited by applicant; court found it unhelpful as the delay there was inordinate with lame and unacceptable reasons

  • City Chemist (NBI) & Another v Oriental Bank Limited
    Civil Application No. Nai 302 of 2008 (UR 199/2008)

    Overriding objective confers latitude but does not facilitate extension of time where inordinate delay is unexplained

On appeal from
High Court of Kenya, Nairobi
H.C.C.C. No. 789 of 2010
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act, Cap 9, and rule 4 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Aviation Cargo Support Limited v St. Mark Freight Services Limited", Case Analysis (2014). Civil Application No. NAI 98 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/835/eng@2014-02-14

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