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Court of AppealDismissedCivil Application (Kisumu) - extension of time application dated 12th July 2016, arising from intended appeal in Civil Appeal No. 89 of 2013· [2016] KECA 93 (KLR)

Mark Oyugi Kasera v Jubilee Jumbo Hardware Ltd & another [2016] KECA 93 (KLR)

Court of Appeal of Kenya
18 November 2016
2,067 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 refused to excuse a late appeal record because the appellant had no written, served request for court proceedings and waited 55 more days before applying.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu (S. Gatembu Kairu, JA) on a Notice of Motion dated 12th July 2016 in which Mark Oyugi Kasera sought leave to file his record of appeal and supplementary record of appeal out of time and to have them deemed duly filed. The intended appeal challenges a High Court judgment of 23rd July 2015 (E. N. Maina, J.) which reversed a magistrate's award of Kshs. 650,000 in damages for malicious prosecution arising from the applicant's acquittal of theft by servant. The applicant filed his notice of appeal a day late (not objected to) but lodged the record of appeal only on 29th March 2016, outside the 60-day period in Rule 82(1). He relied on the proviso excluding time taken to prepare typed proceedings, supported by a certificate of delay issued 19th May 2016. The court held that under Rule 82(2) the proviso is available only where the application for proceedings was in writing and served on the respondent; the applicant exhibited no such letter, no notification or payment evidence, and the certificate of delay appeared only after the respondent moved to strike out the appeal. Further, an unexplained 55-day delay in filing the extension application itself was inordinate. Applying the Fakir Mohamed factors, the judge declined to exercise the discretion and dismissed the application with costs to the 1st respondent. The decision below was not disturbed; this ruling concerns only extension of time.

Key legal issues

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01

Factors governing exercise of Rule 4 discretion to extend time

Holding

The court considers the length of and reasons for delay, arguability of the appeal, prejudice, public importance and the interests of justice; the list is not exhaustive.

Reasoning

The court adopted the classic statement in Fakir Mohamed v Joseph Mugambi, holding that the discretion under Rule 4 is unfettered and that the relevant factors - period of delay, reason for delay, chances of success, prejudice, effect on public administration, compliance with time limits, resources and public importance - are relevant but not exhaustive. The applicant must satisfy the court on these factors with evidence.

p. 3
02

Whether time for preparing typed proceedings was excluded under Rule 82(1)

Holding

No; absent a written application for proceedings served on the respondent, the proviso does not apply and the record was filed out of time.

Reasoning

Although a certificate of delay was later obtained certifying that certified copies were not ready until 1st March 2016, neither the applicant nor his advocate exhibited the letter applying for proceedings, and the respondent asserted it was never served. Rule 82(2) requires the application for copies to be in writing and served. The certificate of delay only appeared after the respondent moved to strike out the appeal, undermining its credibility.

p. 4
03

Whether the delay in filing the extension application itself was excusable

Holding

No; a delay of 55 days between obtaining the certificate of delay (19th May 2016) and filing the application (14th July 2016) was inordinate and unexplained.

Reasoning

Even accepting the applicant's own chronology, there was no explanation for why the application was not lodged until 14th July 2016 after proceedings were received on 9th March 2016 and the certificate of delay issued on 19th May 2016. The court agreed with the 1st respondent that this delay was inordinate and weighed against exercising the discretion in the applicant's favour.

p. 4

Legal principles established

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  • An appellant cannot rely on the proviso to Rule 82(1) excluding time for preparation of typed proceedings unless the application for the copy of proceedings was in writing and a copy was served on the respondent.
  • A party seeking extension of time must place material before the court on which the discretion can be exercised; unexplained delay is inordinate.

Court orders

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  1. 1.The application dated 12th July 2016 is dismissed
  2. 2.Costs of the application to the 1st respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 74
  • Court of Appeal Rules, 2010Rule 75(2)
  • Court of Appeal Rules, 2010Rule 82(1)
  • Court of Appeal Rules, 2010Rule 82(2)
  • Criminal Procedure CodeSection 210

Cases cited (5)

  • Fakir Mohamed v Joseph Mugambi & 2 others
    [2005] eKLR
  • Mutiso vs. Mwangi
    Civil Appl. NAI. 255 of 1997 (UR)
  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR 486
  • Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General
    Civil Appl. NAI. 8/2000 (UR)
  • Murai v Wainaina (No 4)
    [1982] KLR 38
On appeal from
High Court of Kenya at Kisumu
Civil Appeal No. 89 of 2013
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010 (extension of time jurisdiction)

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, "Mark Oyugi Kasera v Jubilee Jumbo Hardware Ltd & another [2016] KECA 93 (KLR)", Case Analysis (2016). Civil Application (Kisumu) - extension of time application dated 12th July 2016, arising from intended appeal in Civil Appeal No. 89 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/93/eng@2016-11-18

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