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Court of AppealAllowedNotice of Motion dated 14th August 2017 (Civil Application)· [2017] KECA 182 (KLR)

Brian Yongo v Jigisha P. Jani & 2 others [2017] KECA 182 (KLR)

Court of Appeal
24 November 2017
2,012 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 gave a litigant more time to appeal because he was never told the ruling had been delivered, showing missed notices can excuse delay.

What this practically means

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Executive summary

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This was a single-judge application by Brian Yongo under rule 4 of the Court of Appeal Rules, Article 159 of the Constitution and section 3A of the Appellate Jurisdiction Act seeking extension of time to file and serve a notice of appeal and record of appeal against a ruling of the Environment and Land Court delivered on 23rd June 2017, dismissing three of his applications with costs. The applicant said he was never served with a ruling notice and only learnt of the ruling on 31st July 2017, when the respondents' advocates served the 3rd respondent with a mention notice. The 1st and 2nd respondents opposed, contending that the applicant, a director of the 3rd respondent, ought to be treated as one with it; that the application was a delaying tactic in a suit pending ten years; and that they would suffer prejudice, the applicant owing them Kshs 5,150,850. The applicant withdrew prayer two as beyond a single judge's remit. Applying the settled rule 4 factors from Stanley Kahoro Mwangi and Fakir Mohammed, Murgor, JA held the delay of about five weeks was reasonably explained by the absence of ruling notice service, that the applicant acted promptly on becoming aware of the ruling, that the intended appeal concerning a 19th April 2010 Consent Order and distress for rent was not frivolous, and that the respondents would suffer no significant prejudice beyond compensable inconvenience. Time was extended for seven days to file the notice of appeal, with the record to be lodged under rule 81, and costs were made costs in the intended appeal.

Key legal issues

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01

Whether the delay in filing the notice of appeal was explained

Holding

Delay of about five weeks from delivery of the ruling until the applicant learnt of it was reasonably explained because the applicant was never served with the ruling notice; the further two weeks taken to lodge the application showed diligence.

Reasoning

The ELC reserved ruling for 9th February 2017 but delivered it on 23rd June 2017 in the absence of the applicant, who could not be traced for service. A party without notice cannot be faulted for non-attendance. He learnt of the ruling only when the 3rd respondent's advocates were served with a mention notice on 31st July 2017, then promptly applied for proceedings on 1st August 2017 and lodged the application on 15th August 2017.

p. 4
02

Whether the intended appeal had arguable chances of success

Holding

The intended appeal was not frivolous; the central question of whether the Consent Order of 19th April 2010 entitled the respondents to levy distress warranted ventilation before a full bench.

Reasoning

The court must not go into the merits, which are the preserve of a full bench; it need only find the appeal is not frivolous or unwarranted. The draft memorandum raised the meaning and effect of the Consent Order regarding distress for rent, a live question of contention.

p. 4
03

Whether the respondents would suffer prejudice

Holding

No significant prejudice beyond the inconvenience of defending the appeal and a momentary interruption of the lower-court suit, compensable in costs.

Reasoning

The respondents argued the main suit had been pending ten years and the applicant was delaying it. The court held that defending an appeal and brief interruption are ordinary incidents compensable by costs and do not amount to significant prejudice against extension of time.

p. 4

Legal principles established

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  • Extension of time under rule 4 is a discretionary, unfettered power exercised on relevant factors including period and reason for delay, chances of success and prejudice to the respondent
  • An applicant who was never served with a ruling notice cannot be faulted for failing to attend delivery of the ruling, and the period before he becomes aware of the ruling reasonably explains delay

Court orders

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  1. 1.Extension of time granted to file and serve the Notice of Appeal, lapsing seven days from the date of the ruling
  2. 2.Memorandum and record of appeal to be lodged in accordance with rule 81, time running from the date of lodging the Notice of Appeal
  3. 3.Costs of the application to be in the intended appeal
  4. 4.Prayer two of the application withdrawn by the applicant

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Appellate Jurisdiction Actsection 3A
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 42
  • Court of Appeal Rulesrule 81

Cases cited (4)

  • Stanley Kahoro Mwangi & 2 others v. Kanyamwi Trading Company Limited
    [2015] eKLR
  • Mutisovs Mwangi, Civil Appln No. Nai 255 Of 1997 (UR)
  • Mwangi vs Kenya Airways Ltd
    [2003] KLR 486
  • Fakir Mohammed vs Joseph Mugambi & 2 Others
    Civil Appln No. Nai 332 Of 2004 (unreported)
On appeal from
Environment and Land Court
Jurisdiction invoked
Article 159 of the Constitution; section 3A of the Appellate Jurisdiction Act; rules 4 and 42 of the Court of Appeal Rules

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, "Brian Yongo v Jigisha P. Jani & 2 others [2017] KECA 182 (KLR)", Case Analysis (2017). Notice of Motion dated 14th August 2017 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/182/eng@2017-11-24

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