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Court of AppealDismissedCivil Appeal No. 195 of 2011· [2014] KECA 859 (KLR)

Rashid Nasoro T/A Kakamega Service Station & Another v Mobil Oil Kenya Limited

Court of Appeal
31 January 2014
GKG.B.M. KARIUKI
2,406 words in judgment
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The bottom line

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The Court of Appeal refused to forgive a three-month filing delay because vague excuses like 'illness' without details don't count in Kenya.

What this practically means

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Executive summary

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This is a single-judge in-chambers ruling of the Court of Appeal at Nairobi by G.B.M. Kariuki JA on a notice of motion dated 21st November 2011 seeking enlargement of time to file a record of appeal against a High Court judgment of Koome J delivered on 26th March 2010 in H.C.C.C. No. 233 of 2005, in which Mobil Oil Kenya Limited obtained judgment against the applicants for Shs.2,053,474.05 plus costs on uncontroverted evidence. The applicants filed a notice of appeal on 3rd April 2010 but lodged the record of appeal only on 16th September 2011, without leave, and brought the present application on 24th November 2011. The court set out the accepted parameters for extension of time: the delay must not be inordinate or must be satisfactorily explained; the appeal must be arguable (one arguable point sufficing); the extension must not cause undue prejudice; and the application must not be frivolous. The court held that the certificate of delay showed the applicants were notified on 5th November 2010 that proceedings were ready but paid only on 14th January 2011, and after collecting the certified decree on 14th April 2011 they had 60 days, yet filed three months late. The illness and lack-of-fees explanation was held hollow for want of particulars, and no arguable point was demonstrated. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the delay in lodging the record of appeal was satisfactorily explained

Holding

Not satisfactorily explained; the illness and lack of fees averment was vague and hollow

Reasoning

The deponent did not state when he became unwell, the seriousness of the illness, whether hospitalised, or when and what fees were demanded. The burden lay on the applicants to demonstrate the circumstances preventing timely filing and that they were beyond their control; a bare assertion did not discharge it.

p. 4
02

Whether the intended appeal was arguable

Holding

Not arguable; no point was demonstrated against a judgment entered on uncontroverted evidence

Reasoning

The High Court had entered judgment because the defendants did not controvert the claim for a liquidated sum. The applicants offered no arguable point, merely asserting arguability without more, despite a memorandum of appeal filed without leave.

p. 4
03

The applicable parameters for extension of time under rule 4 and sections 3A and 3B

Holding

Four parameters apply: delay explained, arguability, absence of undue prejudice, and non-frivolousness; each case on its own merits

Reasoning

The 'sufficient reason' stricture is long gone; the overriding objective governs. Because circumstances vary and there is no fixed category of factors, each application is determined on its own merits against the accepted parameters.

p. 3

Legal principles established

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  • An applicant for extension of time must show that the delay is not inordinate or is satisfactorily explained, that the appeal is arguable, that no undue prejudice will be caused to the respondent, and that the application is not frivolous.
  • Arguability requires only one arguable point; the appeal need not necessarily succeed.
  • A bare assertion that circumstances were beyond the deponent's control is insufficient; the deponent must show how.

Court orders

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  1. 1.Dismissal of the notice of motion dated 21st November 2011 seeking enlargement of time to file the record of appeal
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 82(1) and 82(2)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 233 of 2005
Jurisdiction invoked
Sections 3A and 3B 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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Cite this brief

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Cite this brief

Caselaw, "Rashid Nasoro T/A Kakamega Service Station & Another v Mobil Oil Kenya Limited", Case Analysis (2014). Civil Appeal No. 195 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/859/eng@2014-01-31

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