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Court of AppealDismissedNotice of Motion application dated 30th May 2016· [2016] KECA 253 (KLR)

Mohamed Shally Sese (Shah Sese) v Fulson Company Ltd & another [2016] KECA 253 (KLR)

Court of Appeal of Kenya
30 September 2016
2,047 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to extend time to appeal because a one-year unexplained delay and lack of candour disqualify a litigant from leniency.

What this practically means

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Executive summary

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This was a single-judge application under Rule 4 of the Court of Appeal Rules seeking extension of time to file and serve a Notice of Appeal against a ruling of Emukule, J. delivered on 5th June 2015 in consolidated judicial review applications quashing a decision of the National Land Commission that had revoked a title held by Edward Mzee Karezi and directed re-registration of the suit premises to the applicant, Mohamed Shally Sese. The applicant explained his delay by claiming his counsel never informed him of the outcome, and that he only discovered the adverse ruling in April 2016 when reporting a trespass complaint at Kilifi Police Station. The respondents opposed, arguing that the applicant had already filed a Notice of Appeal through Sachdeva, Nabhan & Swaleh Advocates on 12th June 2015 and, alternatively, that he was not a party to the proceedings. Applying the Supreme Court's Salat principles on extension of time, the court found the delay of over one year inordinate and unexplained, holding that a litigant must be vigilant in the conduct of his affairs. It further found the record showed a Notice of Appeal had already been filed on the applicant's behalf, concluding that he had not been candid with the court and did not come to equity with clean hands. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the delay of over one year in filing the Notice of Appeal was properly explained

Holding

The delay was inordinate and not satisfactorily explained; a litigant must be vigilant and follow up on his case

Reasoning

The ruling was delivered on 5th June 2015 and the applicant claimed he only learnt of it in April 2016 through a police station visit. The court found it implausible that an active participant in emotive land proceedings would go a whole year without contacting his advocate. Extension of time is equitable and equity aids the vigilant, not the indolent.

p. 3
02

Whether the applicant had already filed a Notice of Appeal through his advocates

Holding

The record showed a Notice of Appeal dated 12th June 2015 filed by Sachdeva, Nabhan & Swaleh Advocates on behalf of Mohamed Shali Sese, which the applicant did not controvert, undermining his candour

Reasoning

The respondents demonstrated that Nabhan Swaleh Advocate had been appointed by Shah Sese alias Shali Sese and that a Notice of Appeal was filed on his behalf. The applicant offered no alternative explanation, raising the inference either that he was not a party to the proceedings or that he had not been candid with the court.

p. 4
03

Whether mis-citing rule 75(2) instead of rule 74(2) was fatal

Holding

No; the mis-citation occasioned no prejudice and the application was properly premised on the need for leave under the substantive rules

Reasoning

The court noted the applicant inadvertently cited rule 75(2) rather than rule 74(2) of the Court of Appeal Rules. Applying Article 159(2)(d) on undue regard to technicalities, the court held the spirit and import of the application was clear and no mischief or prejudice was occasioned to the respondents.

p. 2

Legal principles established

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  • A single judge has unfettered discretion under Rule 4 to extend time, but the discretion must be exercised judicially
  • A litigant must be vigilant in the conduct of his affairs; equity aids the vigilant and not the indolent
  • One who seeks an equitable remedy must come with clean hands and equity frowns upon secrecy and underhand dealings

Court orders

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  1. 1.Application for extension of time to file and serve a Notice of Appeal dismissed with costs to the respondents
On appeal from
High Court
Judicial Review Application No. 74 of 2013 (consolidated with Judicial Review Application No. 75 of 2013)
Jurisdiction invoked
Rule 4 and rule 75(2) of the Court of Appeal Rules, 2010; section 3A of the Appellate Jurisdiction Act; Article 164(3), 159(2)(d) and 259(1) 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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Later judgments citing this (2)

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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, "Mohamed Shally Sese (Shah Sese) v Fulson Company Ltd & another [2016] KECA 253 (KLR)", Case Analysis (2016). Notice of Motion application dated 30th May 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/253/eng@2016-09-30

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