Nyaigwa Farmers' Co-operative Society Limited v Ibrahim Nyambare & 3 Others
The bottom line
#Kenya's Court of Appeal let a co-operative society appeal late because its lawyer's mistake wasn't the client's fault, but refused to pause the ruling striking out its case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted extension of time to file and serve a notice and record of appeal out of time
- 2.Whether the intended appeal is arguable
- 3.Whether the respondents would suffer prejudice if the application is allowed
- 4.Whether stay of execution of the High Court ruling should be granted
Key legal issues
#Whether the delay of about four months, partly caused by counsel's mistaken application for leave in the High Court, should be excused
The delay was excused; the mistake of counsel was pardoned and not visited on the client, the applicant having acted promptly once aware of the ruling, of which it had received no notice.
The court found no evidence that the applicant's advocates were served with notice of the delivery of the ruling. Upon learning of it they acted within 18 days, albeit on a mistaken belief that leave was required. Relying on Murai v Wainaina, the court held a blunder on a point of law is a pardonable mistake where the interests of justice dictate rectification, and adopted that reasoning to excuse the delay.
Whether the intended appeal, challenging the striking out of the suit for lack of jurisdiction under the Co-operative Societies Act, was arguable
The intended appeal was arguable because it raised a genuine jurisdictional question whether a claim relating to sale of land belonged to the High Court or the Co-operative Tribunal.
The trial court struck out the suit holding that under section 76 of the Co-operative Societies Act the dispute should have gone to the Co-operative Tribunal. The applicant contended that because the claim related to sale of land, the High Court had jurisdiction. The court held that this rival contention raised issues worth of the Court's consideration, the test for arguability being far lower than eventual success.
Whether stay of execution of the striking-out ruling should issue pending appeal
Stay was refused because a striking-out order is a negative order incapable of execution, rendering the application bad in law.
The court agreed with the respondents' counsel that no execution could issue on an order striking out a suit, since such an order merely terminates the proceedings and requires no enforcement. On that basis the stay application was misconceived and was dismissed, even though the extension of time itself was granted.
Legal principles established
#- Extension of time applications are guided by four principles: length of delay, reason for delay, chances of appeal succeeding, and degree of prejudice to the respondent.
- A mistake of law by counsel in commencing an appeal is not necessarily fatal to an extension of time application.
- An arguable appeal need not be one that must succeed; it suffices that it raises issues worth of the Court's consideration.
- A negative order, such as a striking-out order, cannot be executed and so stay of execution does not lie in respect of it.
Court orders
#- 1.Leave granted to file an appeal out of time
- 2.Notice of appeal to be filed and served within 14 days from the date of the ruling
- 3.Record of appeal to be filed and served within 30 days from the date of filing the notice of appeal
- 4.Application for stay of execution dismissed
- 5.Applicant to bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisii
- ELC Suit No. 11 of 2014
- Jurisdiction invoked
- Sections 3 and 3A of the Appellate Jurisdiction Act and rules 4, 41, 42(1) and 43(1) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court ruling pending the intended appeal
The striking-out order is a negative order incapable of execution
Costs
The applicant shall bear the costs of this application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
They are the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, and lastly, the degree of prejudice to the respondent if the application is allowed.
A mistake is a mistake. It is no less a mistake because it is an unfortunate slip.
An arguable appeal is not one that must succeed, it is an appeal that raises issues that are worth of this Court’s consideration.
For reasons stated herein, I grant the application for leave to file an appeal out of time. The applicant should file and serve the notice of appeal within 14 days from the date hereof.
The application for stay of execution is therefore bad in law and is consequently dismissed.
The applicant shall bear the costs of this application.
Issues in the judgment
#Chronological impossibility: leave application stated heard 6th July 2014, before the 24th April 2015 ruling.
Typographical error merging words in final stay ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaigwa Farmers' Co-operative Society Limited v Ibrahim Nyambare & 3 Others", Case Analysis (2016). Civil Application No. 231 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/830/eng@2016-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.