Peter Mwangi Macharia, Patrick Githinji Mwangi & Stephen Maina Kimanga v Thiong’o Kiunga & Kenya Commercial Bank Limited [2015] KECA 687 (KLR)
The bottom line
#Kenya's Court of Appeal gave three applicants a second chance to appeal, extending time because their appeal was arguable and the other side didn't object.
What this practically means
#Executive summary
#Key legal issues
#Extension of time under Rule 4 of the Court of Appeal Rules
The application was allowed notwithstanding that the applicants had not stated the date their counsel learnt of the ruling, because the respondents conceded the application and the appeal was arguable.
Rule 4 confers a broad discretion to extend time. The court applies factors including length and reasons for delay, arguability, prejudice, public importance, access to justice under Article 48, and human error including errors of legal advisors. The notice of appeal was 21 days out of time; the delay's reasonableness depended on when counsel learnt of the ruling, which the applicants did not state. However, the respondents conceded the application, the draft memorandum showed an arguable appeal on breach of audi alteram partem, and the suit concerned alleged improper auction sale of the applicants' property.
Whether the intended appeal was arguable
The intended appeal was arguable, not frivolous, on the ground that the principle of audi alteram portem was breached when the ruling was delivered in the absence of the applicants' counsel without notice.
The draft memorandum of appeal disclosed an argument that the impugned ruling, delivered in the absence of the applicants' counsel who had not been served with a hearing notice for the delivery date, breached the principle of audi alteram portem. This sufficed to show the appeal was not frivolous, supporting extension of time under the court's policy favouring extension where an arguable appeal is shown.
Legal principles established
#- In an extension-of-time application the court considers the length of the delay, the reasons for it, arguability of the appeal, prejudice to the respondent, public importance where relevant, the requirements of Article 48, and human error including error by a legal advisor.
- The court has a policy predisposition to extend time where the applicant shows a prima facie arguable appeal and the respondent would suffer no harm not compensable by damages.
Court orders
#- 1.Time for lodging the notice of appeal is extended to 23rd January 2015
- 2.The notice of appeal filed on 23rd January 2015 is deemed to have been duly filed and served
- 3.The costs of the application shall abide the result of the appeal, but if no appeal is lodged the applicants shall bear the same
- On appeal from
- High Court of Kenya
- H.C.C.C. No.722 of 2010 (OS)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules — discretionary power to extend time limited by the Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Mwangi Macharia, Patrick Githinji Mwangi & Stephen Maina Kimanga v Thiong’o Kiunga & Kenya Commercial Bank Limited [2015] KECA 687 (KLR)", Case Analysis (2015). Civil Application (Nairobi) — extension of time application by notice of motion dated 9th February 2015, arising from H.C.C.C. No.722 of 2010 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/687/eng@2015-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.