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Court of AppealAllowedCivil Application (as stated: Notice of Motion dated 6th August 2015; Malindi)· [2016] KECA 395 (KLR)

Athuman Nusura Juma v Afwa Mohamed Ramadhan [2016] KECA 395 (KLR)

Court of Appeal of Kenya
1 July 2016
2,526 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 a late appeal because the ruling was delivered without notice, showing courts prioritise cases being heard on merit.

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 Malindi (M'Inoti, JA) on a Notice of Motion dated 6th August 2015 by Athuman Nusura Juma seeking extension of time to lodge a notice of appeal against a ruling of Odero, J. (delivered by Muya, J. on 8th June 2015) dismissing his application for review of an order directing him to pay the respondent, his former wife, Kshs 8 million and Kshs 7.5 million being 25% of the valued values of two matrimonial properties, in line with this Court's judgment of 16th March 2012 in Civil Appeal No. 162 of 2009. The notice of appeal, lodged on 7th July 2015, was 14 days out of the 14 days prescribed by Rule 75 of the Court of Appeal Rules. The applicant explained that the ruling had been notified for 5th June 2015 but was not delivered that day, and that no further notice was served. The court found this confusion satisfactorily explained, held the 14-day delay not inordinate, and treated the arguability of the intended appeal as only 'possibly' established, noting the respondent could still seek to strike out the appeal if no right of appeal existed. Guided by the overriding objective and Article 159 of the Constitution, the court allowed the motion, directed filing and service of the notice of appeal within 7 days and the record of appeal within 21 days, with costs of the application to abide the outcome of the intended appeal.

Key legal issues

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01

Extension of time under Rule 4 of the Court of Appeal Rules

Holding

The discretion is wide and unfettered and must be exercised judiciously; the old requirement of 'sufficient reason' was removed by the 1985 amendment.

Reasoning

Rule 4 confers jurisdiction to extend time on such terms as the Court thinks just. Previously a party needed 'sufficient reason', but that stricture was removed by amendment in 1985, leaving an unfettered discretion constrained only by the requirement that it be exercised judiciously. The factors are relevant but not exhaustive.

p. 3
02

Reason for the delay

Holding

Delivery of the ruling on 8th June 2015 without notice, after confusion at the court on 5th June 2015, satisfactorily explained the failure to file the notice of appeal on time; any doubt was resolved in the applicant's favour.

Reasoning

There was undisputed confusion: the ruling was notified for 5th June 2015 but not delivered that day, and no further written notice was issued for the 8th June delivery. The court found it doubtful that the applicant and his advocates were aware of the new date, and gave the applicant the benefit of the doubt.

p. 3
03

Length of delay and applicant's conduct

Holding

A delay of some 14 days, with prompt action once the ruling was known, was not inordinate and the applicant's conduct was not dilatory.

Reasoning

The applicant learnt of the ruling on 6th July 2015, obtained a copy the next day and filed the notice of appeal the same day, albeit 14 days out of time. Travelling to Nairobi to file the application was inconsistent with deliberate delay; further delay arose from file-transfer modalities not attributable to him.

p. 3
04

Arguability of the intended appeal

Holding

The intended appeal was 'possibly' arguable; the respondent's contention that no right of appeal existed without leave was not an open-and-shut issue and the respondent remains free to strike out the appeal.

Reasoning

The court prefixes the chances-of-success factor with 'possibly' precisely to avoid determining merits finally at this stage. The leave issue raised by the respondent was left open, with the respondent at liberty to strike out the appeal if filed without a right of appeal.

p. 4
05

Prejudice to the respondent and overriding objective

Holding

Any prejudice was not insurmountable since the appeal could be heard in Malindi in real time, and the overriding objective favoured granting the extension notwithstanding the long litigation history.

Reasoning

Although the litigation had dragged on, the applicant was entitled to exercise his right of appeal, and the appeal could be heard and determined in Malindi in real time, minimising prejudice. The overriding objective favours fair, just, speedy and proportionate disposal, and determination on merit rather than on procedural lapses.

p. 4

Legal principles established

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  • The discretion under Rule 4 of the Court of Appeal Rules to extend time is wide and unfettered, and must be exercised judiciously on relevant factors including delay, reason for delay, possible chances of success and prejudice to the respondent.
  • Whether an intended appeal has merits is not determined with finality on an extension-of-time application; the chances-of-success factor is only 'possibly' considered.
  • Following the overriding objective and Article 159 of the Constitution, courts strive to determine disputes on merit without being unduly constrained by procedural lapses.

Court orders

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  1. 1.The motion dated 6th August 2015 is allowed; time extended so that the notice of appeal lodged on 7th July 2015 is deemed duly lodged
  2. 2.The applicant to file and serve a notice of appeal upon the respondent within 7 days from the date of the ruling
  3. 3.The applicant to thereafter file and serve the record of appeal within 21 days from the date of filing the notice of appeal
  4. 4.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75
  • Constitution of KenyaArticle 159

Cases cited (11)

  • Fakir Mohamed v. Joseph Mugambi & 2 Others
    C.A. No. Nai. 332 of 2004
  • Mongira & Another v. Makori & Another
    [2005] 2 KLR 103
  • Leo Sila Mutiso v. Rose Hellen Wangari Mwangi
    C.A. Nai. 251 of 1997
  • Eastleigh Mattresses Ltd v. Stephen Mihang’o Kariuki & 2 Others
    CA No. Nai 208 of 204
  • Edith Gichugu Koine v. Stephen Njagi Thoithi
    CA No. 11 of 2014 (Nyeri)
  • Peter Kariuki M’Nkanata v. Sabela Ncekei Kirima
    CA No. Nai 140 of 2010
  • Peter Luka Ndutu v. Daniel Wambua Ndavi
    CA No. Nai. 317 of 2007
  • Tamil Enterprises Ltd v. Official Receiver & Provisional Liquidator of Continental Credit Finance Ltd
    CA No. Nai. 264 of 2004
  • Njogu Macharia v Paul Wairuri Mwangi
    CA No. 110 of 2006
  • Kariuki Network Ltd & Another v. Daly & Figgis Advocates
    CA No. Nai 293 of 2009
  • Nicholas Salat v. IEBC & 6 Others
    CA No. 228 of 2013
On appeal from
High Court of Kenya at Mombasa
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time), exercised by a single Judge of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Athuman Nusura Juma v Afwa Mohamed Ramadhan [2016] KECA 395 (KLR)", Case Analysis (2016). Civil Application (as stated: Notice of Motion dated 6th August 2015; Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/395/eng@2016-07-01

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