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Court of AppealPartially AllowedCivil Application 287 of 2014· [2015] KECA 967 (KLR)

Stanley Kahoro Mwangi & 2 others (Suing on their own behalf and on behalf of Twendane Company Limited) v Kanyamwi Trading Company Limited

Court of Appeal
30 January 2015
JMJ. Mohammed
1,685 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal excused a late appeal filing because the delay was properly explained, but still made the applicants pay the other side's costs.

What this practically means

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Executive summary

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This is a ruling by J. Mohammed, JA sitting as a single judge of the Court of Appeal, on a Notice of Motion dated 9th October 2014 seeking leave to file the memorandum and record of appeal out of time, and deeming of a notice of appeal filed late following the ruling of Waithaka, J in ELC No. 113 of 2012 (Nakuru) delivered on 20th June 2014. The notice of appeal was lodged on 21st July 2014, beyond the 14-day period under Rule 75 which expired on 4th July 2014, and the time for filing the record had also lapsed because typed proceedings had not been availed. The respondent, though served, did not appear. The judge restated the settled Rule 4 principles from Mutiso v Mwangi, Mwangi v Kenya Airways Ltd and Fakir Mohammed v Joseph Mugambi: the discretion is unfettered but must be exercised judicially, weighing the length and explanation of delay, chances of success, and prejudice, and balancing the right of appeal against the respondent's right to enjoy the fruits of the judgment. Finding the delay adequately explained and no substantial prejudice to the respondent, the court deemed the notice of appeal duly filed and allowed the record of appeal to be filed within 60 days of the Certificate of Delay. Costs of the application were nonetheless awarded to the respondents. The underlying High Court decision was not disturbed.

Key legal issues

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01

Whether the applicants' 28-day delay in filing the notice of appeal was excusable

Holding

Yes; the court found the delay adequately explained and no substantial prejudice to the respondent, and deemed the notice of appeal duly filed.

Reasoning

The court restated the Rule 4 principles: unfettered discretion guided by relevant factors including length and explanation of delay, chances of success, and prejudice. It accepted the applicants' explanation that typed proceedings were unavailable and members took time to instruct counsel, balanced the applicants' right of appeal against the respondent's right to enjoy the judgment, and found no substantial prejudice.

p. 4
02

Extension of time to file the memorandum and record of appeal

Holding

Granted conditionally: the memorandum and record of appeal to be filed within 60 days of issuance of the Certificate of Delay.

Reasoning

The time for filing the record had lapsed pending receipt of typed proceedings not yet availed. The court found the delay not occasioned by indolence and exercised its Rule 4 discretion in the applicants' favour, subject to a 60-day period tied to the Certificate of Delay.

p. 4

Legal principles established

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  • Under Rule 4 the single judge has an unfettered but judicially exercised discretion, considering non-exhaustive relevant factors including period and reason for delay, chances of appeal success, and prejudice to the respondent.
  • A plausible and satisfactory explanation for delay is the key to unlocking the court's discretion in favour of an extension of time applicant.

Court orders

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  1. 1.That the Notice of Appeal dated July 18, 2014 and lodged at the High Court registry on July 21, 2014 be deemed as duly filed
  2. 2.The applicant shall file its Memorandum and Record of Appeal within 60 days of the issuance of the Certificate of Delay
  3. 3.Costs of this application to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43(1)
  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 82
  • Civil Procedure ActSection 3A

Cases cited (6)

  • Mutiso v Mwangi
    Civil Appln No. Nai 255 of 1997 (ur)

    Principles governing extension of time under Rule 4

  • Mwangi v Kenya Airways Ltd
    [2003] KLR 486

    The Rule 4 list of factors is not exhaustive; discretion is unfettered if exercised judicially

  • Fakir Mohammed v Joseph Mugambi & 2 Others
    Civil Appln No. NAI 332 of 2004

    Well-settled parameters for exercise of Rule 4 discretion

  • M/s Portreitz Maternity v James Karanga Kabia
    Civil Appeal No. 63 of 1997

    Right of appeal must be balanced against the plaintiff's right to enjoy the fruits of judgment

  • Monica Malel & Anor v R
    Eldoret Civil Appln No. NAI 246 of 2008

    Reason for delay must be specific, not guesswork

  • Haywood v Cope
    [1858] 25 Beav 140

    Discretion must be exercised according to fixed and settled rules

On appeal from
High Court of Kenya at Nakuru
ELC NO. 113 of 2012
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and Section 3A of the Civil Procedure Act

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, "Stanley Kahoro Mwangi & 2 others (Suing on their own behalf and on behalf of Twendane Company Limited) v Kanyamwi Trading Company Limited", Case Analysis (2015). Civil Application 287 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/967/eng@2015-01-30

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