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Court of AppealPartially AllowedCivil Application No. 60 of 2015· [2015] KECA 186 (KLR)

Riccardo Fanelli & 2 others v Frigrieri Graziano [2015] KECA 186 (KLR)

Court of Appeal of Kenya
4 December 2015
KMK. M'Inoti
1,528 words in judgment
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The bottom line

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Kenya's Court of Appeal granted late appellants extra time to file their appeal, but warned that stay and injunction requests must be filed separately from time-extension applications.

What this practically means

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Executive summary

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This was a single judge application before the Court of Appeal at Mombasa seeking extension of time to lodge a notice of appeal, combined in one omnibus motion with reliefs ordinarily reserved for the full court. The judge deprecated the growing practice in Malindi and Mombasa of combining single-judge and full-court reliefs in one application, holding that extension of time applications under Rule 4 are for a single judge in the first instance, while stay of execution, injunction and stay of proceedings applications under Rule 5(2)(b) must be made to the full court. Although the respondents objected to the omnibus nature of the motion, the court held the defect technical and curable under Article 159 of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act, treating the application as one for extension of time only. On the merits, the applicants sought to appeal against a High Court judgment delivered on 3rd September 2015 by Meoli, J., concerning shareholding in the 3rd applicant and the disposal of its assets. The court found the delay of about ten days after receipt of the judgment was not inordinate, supported by passport evidence that the applicants were abroad; the intended appeal was arguable; and the respondent would suffer no obvious prejudice. Technical objections, including the change of advocates and the swearing of the affidavit, were not allowed to defeat the application. The court allowed the application, directed the applicants to file and serve the notice of appeal within seven days, and ordered that costs abide the outcome of the intended appeal.

Key legal issues

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01

Omnibus applications combining single-judge and full-court reliefs

Holding

The practice is improper and has no basis in the rules, but the defect is technical and curable; the court may treat the application as one within the single judge's competence

Reasoning

The court noted the practice of combining reliefs for a single judge with those for the full court in one motion is prevalent in Malindi and Mombasa, encourages unnecessary objections and is a device to avoid prescribed fees. The court has previously deprecated it. However, the default is technical and curable under Article 159 of the Constitution and the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, so the court treated the application as a single judge application.

p. 2
02

Extension of time to lodge notice of appeal

Holding

Extension granted where the delay was about ten days after receipt of the judgment, attributable in part to former advocates' failings, and the intended appeal was arguable with no obvious prejudice to the respondent

Reasoning

The court applied the Fakir Mohamed factors: period of delay, reason for delay, arguability of the appeal, and prejudice. The applicants' passport evidence supported the claim they were abroad; the delay was barely ten days; the intended appeal could not be dismissed as hopeless; disputed objections (shareholding, affidavit swearing, change of advocates) could not be conclusively determined on such an application. Procedural hitches should not be elevated to fatal defects.

p. 3

Legal principles established

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  • Applications for extension of time under Rule 4 are heard in the first instance by a single judge; only by reference under rule 55 do they reach the full court; applications for stay of execution, injunction or stay of proceedings under rule 5(2)(b) must be made to the full court, and the two applications must be filed and prosecuted separately
  • The discretion to extend time under rule 4 is wide and unfettered but must be exercised judicially, having regard to relevant factors including the period and reason for delay, chances of success, and prejudice to the respondent

Court orders

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  1. 1.The omnibus application treated as a single judge application for extension of time only
  2. 2.Extension of time granted to lodge the notice of appeal
  3. 3.Applicants to file and serve the notice of appeal within seven days from the date of the ruling
  4. 4.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 53(1)
  • Court of Appeal RulesRule 55

Cases cited (6)

  • Christopher Iddi Moto & 15 Others v Chiriba Nyambu Barua & Another
    CA No. 43 of 2014 (UR 38/14)
  • Feisal Mohamed Ali v Republic
    Cr Ap. No. 2 of 2015 (UR1/15)
  • Fakir Mohamed v Joseph Mugambi & 2 Others
    C.A. No. NAI 332 of 2004
  • Muchugi Kiragu v James Muchugi Kiragu & Another
    CA No. NAI. 36 of 1996
  • Joseph Mweteri Igweta v Mukira M'Ethare & Another
    CA No. NAI. 270 of 2001 (149/2001 UR)
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others
    CA No. 228 of 2013
On appeal from
High Court of Kenya at Malindi
not stated in judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Riccardo Fanelli & 2 others v Frigrieri Graziano [2015] KECA 186 (KLR)", Case Analysis (2015). Civil Application No. 60 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/186/eng@2015-12-04

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