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Court of AppealPartially AllowedCivil Application No. 225 of 2016 (UR 177 of 2016)· [2016] KECA 65 (KLR)

Okiya Omtatah Okoiti & another v Afrison Export Limited & 8 others [2016] KECA 65 (KLR)

Court of Appeal of Kenya
2 December 2016
12,993 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 allowed public interest litigants to appeal a Kshs.1.8 billion land consent judgment nearly four years late, ruling that even long delays can be excused with a plausible explanation.

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 Nambuye, JA, on a Notice of Motion dated 10th October 2016 by Okiya Omtatah Okoiti and Nyakina Wyclife Gisebe seeking extension of time and leave to file and serve a Notice of Appeal, memorandum and record of appeal out of time in an intended appeal from the consent judgment and decree of the High Court (Mabeya, J) delivered on 12th February 2013 in Civil Case No. 617 of 2012. The applicants, public interest litigants who were not parties to the High Court proceedings, had already been clothed with locus standi by a three-judge bench of the Court in Civil Application No. 115 of 2016 (UR 92/2016). They explained the delay of about three years and nine months by their discovery, upon scrutiny of the Auditor General's report on 18th April 2016, of alleged malpractices and misapplication of public funds in a land transaction in which the government had paid Kshs.1.8 billion to the 1st and 2nd respondents. The respondents opposed, citing inordinate delay, prior media publication of the Auditor General's report, the substantially executed consent judgment, and lack of arguability. Applying the settled Rule 4 principles (length and reason for delay, arguability, and prejudice) and Article 159 and Sections 3A and 3B of the Appellate Jurisdiction Act, the court found a plausible explanation for the delay, held the intended appeal arguable on jurisdiction and the validity of the consent judgment, and ruled that an order for leave to appeal out of time is not a stay, so execution fears were premature. The application was allowed in part: the applicants were granted 14 days to file and serve a Notice of Appeal, prayers 1, 2, 5 and 6 were struck out as incompetent, and costs of the application were to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the applicants gave a plausible explanation for the delay of over three years and nine months in initiating the appeal

Holding

Yes. Although the delay was inordinate, the applicants only learnt of the matters intended to be raised on appeal on 18th April 2016 upon scrutinising the Auditor General's report, and thereafter moved to clothe themselves with locus standi before seeking extension of time. Issues of inordinate delay do not arise.

Reasoning

The court accepted that the delay of three years and nine months would ordinarily be inordinate under the Rule 4 principles. However, the explanation offered — that the applicants were strangers to the High Court proceedings and only discovered the grounds of complaint on 18th April 2016 — was the same explanation believed as truthful by the bench that granted them locus standi. Having no reason to disbelieve it, the court found a plausible explanation existed because between April and October 2016 the applicants had been pursuing locus standi.

p. 9
02

Whether substantial execution of the consent judgment should defeat the application

Holding

No. Execution of the judgment does not extinguish the right of appeal; leave to appeal out of time is not a stay, and the respondents' concerns are properly the subject of a stay application.

Reasoning

The respondents argued that the government had paid Kshs.1.8 billion and the 1st and 2nd respondents had executed an indenture, so extension of time would prejudice them. The court held this a major consideration but not one capable of withholding a right of appeal, because an extension order does not automatically reverse ongoing execution. The remedy for the respondents lies in a stay application, and their fears in that regard were premature and unjustified.

p. 10
03

Whether the intended appeal is arguable

Holding

Yes. Issues of public accountability by public officers, lack of jurisdiction of the trial court, and whether the consent judgment met the legal threshold for entry of such judgment are all arguable.

Reasoning

The court found the intended grounds — public accountability of public officers, lack of jurisdiction, and whether the consent judgment met the legal threshold for entry — were arguable. Arguability requires only a single bona fide arguable ground, not a demonstration that the appeal will succeed. The public accountability issue carried particular weight since it was a consideration underlying the grant of locus standi and could not be ignored.

p. 10
04

Whether withholding the relief would offend Article 159 and the overriding objective

Holding

Yes. Having clothed the applicants with locus standi, withholding extension of time would be rendering justice on technicalities and would defeat the overriding objective, prolonging litigation.

Reasoning

The court reasoned that since the applicants had already been clothed with locus standi to pursue the appellate process, denying them extension of time would amount to giving relief with one hand and taking it away with the other. Such withholding would render justice on technicalities, contrary to Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act, and would defeat the overriding objective by prolonging litigation through an application to the full court.

p. 10

Legal principles established

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  • An order for leave to appeal out of time does not in itself act as a stay of execution; a party fearing execution should apply separately for stay.
  • Inordinate delay alone does not automatically disentitle a litigant to extension of time; the court must have regard to the explanation given for the delay.
  • No number of grounds is required for an appeal to be arguable; even one ground suffices.
  • The Rule 4 discretion considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.The applicants have 14 days from the date of the delivery of the ruling to file and serve a Notice of Appeal
  2. 2.Thereafter the parties to proceed according to law
  3. 3.Prayers 1, 2, 5 and 6 of the Notice of Motion are struck out as being incompetent
  4. 4.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 20
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 40(6)
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 164(3)
  • Constitution of Kenya, 2010Article 165(5)(b)
  • Constitution of Kenya, 2010Article 226(5)
  • Constitution of Kenya, 2010Article 258
  • Constitution of Kenya, 2010Article 259(1)
  • Appellate Jurisdiction Act (Cap 9)Section 3(2)
  • Appellate Jurisdiction Act (Cap 9)Section 3A
  • Appellate Jurisdiction Act (Cap 9)Section 3B
  • Court of Appeal Rules 2010 (Cap 9, sub rule 9)Rule 1(2)
  • Court of Appeal Rules 2010 (Cap 9, sub rule 9)Rule 4
  • Court of Appeal Rules 2010 (Cap 9, sub rule 9)Rule 42
  • Court of Appeal Rules 2010 (Cap 9, sub rule 9)Rule 43(1)
  • Court of Appeal Rules 2010 (Cap 9, sub rule 9)Rule 75(1) and (2)
  • Court of Appeal Rules 2010 (Cap 9, sub rule 9)Rule 77
  • Gazette Notice No. 19 of 2011 of 9/11/2012 (practice directions)Practice directions on part-heard matters

Cases cited (25)

  • Kenya Agricultural and Live Stock Research Organization v Stephen Ngaruiye Kanyanja
    Nairobi Civil Application No. Nai 215 of 2015
  • Jaldesa Tuke Dabelo v IEBC & Another
    [2015] eKLR
  • Raila Odinga and 5 Others v IEBC & 3 Others
    [2013] eKLR
  • Lemanken Arata v Harum Meita Mei Lempaka & 2 Others
    eKLR
  • Patricia Cherotich Sawe v IEBC & 4 Others
    [2015] eKLR
  • City Chemist (NB1) Mohamed Kasabuli suing for and on behalf of the Estate of Halima Wamukoya Kasabuli v Orient Commercial Bank Limited
    Civil Application No. Nai 302 of 2008 (UR.199/2008)
  • Kariuki Network Limited & Another v Daly & Figgis Advocates
    Civil Application No. Nai 293 of 2009
  • Caltex Oil Limited v Evanson Wanjihia
    Civil Application No. Nai 190 of 2009 (UR)
  • Equity Bank Limited v West Link Mbo Limited
    [2013] eKLR
  • Board of Governors, Moi High School, Kabarak & Another v Malcolm Bell
    [2013] eKLR
  • Edith Gichugu Koine v Stephen Njagi Thoithi
  • Fakir Mohamed v Joseph Mugambi & 2 Others
    Civil Application Nai. 332 of 2004 (UR)
  • Nyaigwa Farmers Co-operative Society Limited v Ibrahim Nyambare & 3 Others
  • Patel v Waweru & 2 Others
    [2003] KLR 361
  • Hon. John Njoroge Michuki & Another v Kentazuga Hardware Limited
    [1998] eKLR
  • Cargil Kenya Limited Nawal v National Agricultural Export Development Board
  • Hellen Waruguru Waweru v Kiarie Shoe Stores Limited
  • Mutiso v Mwangi
    [1997] KLR 630
  • Paul Wanjohi Mathenge v Duncan Gichane Mathenge
    [2013] eKLR
  • Joseph Wanjohi Njau v Benson Maina Kabau
    Civil Application No. 97 of 2012
  • Richard Nchapi Leiyagu v IEBC & 2 Others
    Civil Appeal No. 18 of 2013
  • Mwangi v Kenya Airways Limited
    [2003] KLR 486
  • The Owners of the Motor Vessel Lilian 'S' v Caltex Kenya Ltd
    [1989] KLR 1
  • Musiara Ltd v Ntimana
    [2005] 1EA 317
  • Okiya Omtatah Okoiti and Another v Afrison Export Limited and 8 Others
    Civil Application No. 115 of 2016 (UR 92/2016)
On appeal from
High Court of Kenya, Nairobi, Commercial & Admiralty Division
Civil Case No. 617 of 2012
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules 2010; Sections 3(2), 3A and 3B of the Appellate Jurisdiction Act (Cap 9); Article 159 of the Constitution of Kenya, 2010

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, "Okiya Omtatah Okoiti & another v Afrison Export Limited & 8 others [2016] KECA 65 (KLR)", Case Analysis (2016). Civil Application No. 225 of 2016 (UR 177 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/65/eng@2016-12-02

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