Phelister Masista Masheti & another v Arnold Sitati Bwisa & another [2017] KECA 487 (KLR)
The bottom line
#The Court of Appeal upheld a refusal to extend time to appeal, holding that missing court files, a wrong certificate, and collecting the judgment money destroyed the appellant's chances.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice of appeal filed out of time rendered the appeal incompetent
The objection failed because it was raised too late without leave, contrary to Rule 104(b) of the Court of Appeal Rules
The respondents argued the notice of appeal was filed out of time without leave, making the appeal incompetent. The court held that Rule 104(b) prohibits raising objections to competence that could have been raised under Rule 84 (striking out within 30 days of service of the notice), unless leave of the Court is obtained. No leave was sought or given, so the objection was rejected.
Whether the principles under Rule 4 of the Court of Appeal Rules differ from those under Section 79G of the Civil Procedure Act
The provisions differ in phraseology but the Supreme Court's principles in the Salat case govern extension-of-time applications generally; the High Court considered the relevant elements despite not citing Salat
The court noted that Section 79G requires 'good and sufficient cause' while Rule 4, as amended in 1985, confers unfettered discretion requiring only 'sufficient reason'. The Supreme Court in Salat settled the approach: extension of time is an equitable remedy, the applicant bears the burden of laying the basis, delay must be explained to the satisfaction of the court, and prejudice to the respondent and undue delay in bringing the application are considerations.
Whether the certificate of delay obtained by the appellant was valid under Section 79G
The certificate was invalid because the appellant applied for copies of proceedings and judgment rather than a copy of the decree or order
Relying on Kyuma v Kyema, the court held that Section 79G contemplates a certificate of delay indicating the period required to prepare a copy of the decree or order. The appellant instead sought uncertified copies of the proceedings and a certified copy of the judgment, rendering the certificate, in the words of Kwach JA, 'absolutely worthless and incapable of remedying the delay that occurred'.
Whether the High Court erred in finding the delay inordinate and unexplained
The High Court properly found the delay inordinate and the explanation of a missing court file wanting; a diligent litigant would have complained in writing to the court
The sole explanation for the delay was a missing court file. The court found the explanation wanting because the appellant and her advocates never wrote to the registry complaining of the missing file, considering three months not a long wait. The deputy registrar's certificate showed copies were applied for on 17th September 2012, not June 2012, and the High Court made no error in relying on that date.
Whether the appellant's conduct prejudiced the respondents
The appellant's pursuit of the decretal sum and costs led the respondents to reasonably believe no appeal was contemplated
The appellant did not deny that she pursued payment of the decretal sum and costs of the suit, which were settled in full. The respondents said they were led to believe there would be no appeal and were being taken by surprise. The court held this was a reasonable apprehension and constituted prejudice, a Salat factor weighing against extension.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion of a lower court unless the judge misdirected himself, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision is plainly wrong
- A certificate of delay under Section 79G of the Civil Procedure Act must certify the time taken to prepare a copy of the decree or order, not the proceedings and judgment
- Rule 104(b) of the Court of Appeal Rules bars objections to the competence of an appeal that could have been raised by application under Rule 84, unless leave of the Court is obtained
- The principles for extension of time set out in the Salat case govern such applications, including that extension of time is an equitable remedy, the applicant bears the burden of explanation, and prejudice to the respondent must be considered
Court orders
#- 1.The appeal be and is hereby dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Appl. No. 693 of 2013
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules; appeal against exercise of discretion of the High Court refusing extension of time under Section 79G of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Phelister Masista Masheti & another v Arnold Sitati Bwisa & another [2017] KECA 487 (KLR)", Case Analysis (2017). Civil Appeal No. 247 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/487/eng@2017-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.