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Court of AppealPartially AllowedNotice of Motion dated 8th June 2017 (arising from HCCA No. 320 of 2010)· [2017] KECA 316 (KLR)

Everlyn Adhiambo Kongoro & 2 others v Transeast Limited & another [2017] KECA 316 (KLR)

Court of Appeal of Kenya
27 September 2017
FSF. Sichale
740 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 estate administrators to appeal out of time, ruling a short, well-explained delay should not block access to justice.

What this practically means

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Executive summary

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This is a single-judge decision of the Court of Appeal at Nakuru (F. Sichale, JA) on a Notice of Motion dated 8th June 2017 by the co-administrators of the estate of Grace Limimba Ongonge, seeking extension of time to lodge an appeal against a ruling of Hon. Lady Justice Mulwa delivered on 27th April 2017 in HCCA No. 320 of 2010, and deeming of a Notice of Appeal dated 15th May 2017 as properly filed. The applicants explained that their Nairobi-based advocates had arranged for Ms Kiberenge to take the ruling in Nakuru; she was unreachable on the day, and it was only on 10th May 2017, after engaging Mr Frederick Ochiel to peruse the file, that they learned of the outcome. Leave to appeal was granted on 24th May 2017, after the 14-day period had expired. The respondent opposed, contending that the delay was unexplained and unsupported by evidence. The court held that extension of time is discretionary but must be exercised judiciously, citing Fakir Mohammed v Joseph Mugambi and applying the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act as articulated in Edith Gichugu Koine v Stephen Njagi Thoithi. Finding the delay neither inordinate nor unexplained, and no great prejudice to the respondent, the judge allowed the motion, extended time, deemed the Notice of Appeal properly filed, and ordered that costs of the application abide the outcome of the intended appeal.

Key legal issues

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Whether the delay of approximately three weeks in filing the Notice of Appeal was inordinate and excusable

Holding

The delay was not inordinate and was satisfactorily explained by the advocates' failed arrangements to have the ruling taken and perused on their behalf in Nakuru

Reasoning

The court accepted the uncontradicted evidence of counsel's clerk arrangements: Ms Kiberenge was unreachable on the delivery date, and Mr Ochiel only accessed the file on 10th May 2017. Leave to appeal was granted on 24th May 2017. The court noted that in an imperfect world even the best-intentioned plans fail, and that where delay is neither inordinate nor unexplained, the respondent cannot show great prejudice.

p. 2

Legal principles established

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  • Extension of time is discretionary but must be exercised judiciously
  • In assessing extension-of-time applications courts must apply the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act
  • Where delay is not inordinate and is explained, the respondent will not ordinarily suffer great prejudice

Court orders

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  1. 1.Time for lodging an appeal from the ruling of 27th April 2017 in HCCA No. 320 of 2010 is extended
  2. 2.The Notice of Appeal dated 15th May 2017 is deemed to have been properly filed
  3. 3.Costs of the application shall abide the outcome of the intended appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B

Cases cited (2)

  • Fakir Mohammed vs Joseph Mugambi & 2 Others
    CA No. NAI 332/2014
  • Edith Gichugu Koine v. Stephen Njagi Thoithi
    [2010] eKLR
On appeal from
High Court of Kenya
HCCA No. 320 of 2010
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act (inherent power and overriding objective)

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, "Everlyn Adhiambo Kongoro & 2 others v Transeast Limited & another [2017] KECA 316 (KLR)", Case Analysis (2017). Notice of Motion dated 8th June 2017 (arising from HCCA No. 320 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/316/eng@2017-09-27

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