Mark Oyugi Kasera v Jubilee Jumbo Hardware Ltd & another [2016] KECA 93 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Factors governing exercise of Rule 4 discretion to extend time
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.
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.
Whether time for preparing typed proceedings was excluded under Rule 82(1)
No; absent a written application for proceedings served on the respondent, the proviso does not apply and the record was filed out of time.
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.
Whether the delay in filing the extension application itself was excusable
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.
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.
Legal principles established
#- 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
#- 1.The application dated 12th July 2016 is dismissed
- 2.Costs of the application to the 1st respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.