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Court of AppealDismissedCivil Application No. NAI 282 of 2012 (UR 240/2015)· [2017] KECA 525 (KLR)

Velos Enterprises Ltd v Paragon Electronics Limited [2017] KECA 525 (KLR)

Court of Appeal of Kenya
28 April 2017
GKG. B. M. Kariuki
4,132 words in judgment
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The bottom line

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The Court of Appeal refused to rescue a late appeal because the lawyer never served the letter requesting court proceedings on the other side, making an extension pointless.

What this practically means

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Executive summary

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Velos Enterprises Ltd, aggrieved by the judgment of Ogola J of the High Court delivered on 23rd October 2015 in H.C.C.C. No. 285 of 2010 (consolidated with Civil Case No. 289 of 2009), applied to the Court of Appeal under rule 4 for extension of time to file its Notice of Appeal, which had been lodged 13 days late. The applicant attributed the delay to a change in clerical services in its advocates' offices. The respondent opposed, arguing the explanation was lame, and further that the applicant could not benefit from the proviso to rule 82(1) because it had failed to serve its letter bespeaking proceedings on the respondent, so the 60-day period for instituting the appeal had expired on 23rd December 2015. Kariuki JA (in chambers) accepted that rule 4 confers an unfettered discretion to be exercised judicially, taking into account the length of and reasons for the delay, arguability of the appeal, prejudice, public interest and the interests of justice. He found the 13-day delay not inordinate and accepted the explanation, and held the intended appeal arguable. However, because the applicant had not complied with rule 82(2) by serving the letter requesting proceedings, it could not invoke the proviso to rule 82(1), and the appeal could not be brought on board even if extension were granted; extension would therefore be an exercise in futility. The court also noted obiter that it could, in the interests of justice, order service of the notice suo motu. The application was dismissed with costs to the respondent.

Key legal issues

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Exercise of the unfettered discretion under rule 4 to extend time and the effect of non-compliance with rule 82(1)

Holding

Although the 13-day delay was explained and the appeal arguable, the application fails because the applicant did not serve the letter bespeaking proceedings on the respondent within 30 days, disqualifying it from the proviso to rule 82(1); the 60-day period expired on 23rd December 2015 and no extension could salvage the appeal.

Reasoning

Rule 4 confers unfettered discretion, exercised judicially by considering the length of and reasons for delay, arguability, prejudice, public interest and access to justice. Here the delay was short, explained and accepted, and the appeal prima facie arguable. However, the respondent showed that non-compliance with rule 82(2) meant the proviso excluding time for preparing proceedings was unavailable, so the appeal could never be instituted within time and extension would be futile, following Harry Njai and Development Bank of Kenya.

p. 5

Legal principles established

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  • An applicant cannot take advantage of the proviso to rule 82(1) excluding the time for preparation of proceedings from the 60-day period for lodging an appeal unless the letter bespeaking the proceedings was served on the respondent within 30 days of the decision; without that compliance, extension of time to file and serve the notice of appeal is of no avail.

Court orders

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  1. 1.The application for extension of time to file and serve the Notice of Appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 75
  • Court of Appeal Rulesrule 81(1) and (2)
  • Court of Appeal Rulesrule 82(1) and (2)
  • Court of Appeal Rulesrule 112
  • Constitution of Kenya, 2010Article 48
  • Appellate Jurisdiction Act, Cap 9section 3A
  • Appellate Jurisdiction Act, Cap 9section 3B(1)

Cases cited (12)

  • The Ministry of Education & Attorney General versus The Arya Pratinidhi Sabha East Africa
    Civil Application No.120 of 2013 (unreported)
  • Gulam Hussein N. Cassamand and Another v. Shashikant Ramji
    Civil Application No. Nai 1 of 1981
  • Githere V. Kimungu
    [1984] KLR 387
  • Eastleigh Mattresses Ltd versus Stephen Mihang’o Kariuki & 2 Others
    Civil Application No. Nai 208 of 2014 (unreported)
  • Ketterman V Hansel Properties Ltd
    [1988] 1 ALL ER 38
  • Pola Charo Kariki v. Teddy Davis Ngala
    Civil Application No.44 of 2015 (in Chambers)
  • Leo Sila Mutiso v Rose Helen Wangari Mwangi
    Civil Application No.255 of 1997
  • Mongira & Another v Makori & Another
    [2005] 2 KLR 103
  • Hon. John M. Michuki v Rose Waruino Muthemba
    Civil Application No. Nai 16 of 1998
  • Harry Njai V. Taita Ranching Co. Ltd
    Civil Application No. Nai 255 of 2010 (Mombasa, unreported)
  • Development Bank of Kenya Ltd & Another v. Francis Ndegwa
    Civil Application No.28 of 2013
  • Ramji Devji Vekaria - vs - Joseph Oyula
    Civil Appeal (Application) No.154 of 2010
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 285 of 2010 (consolidated with Civil Case No. 289 of 2009)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), pursuant to the Appellate Jurisdiction Act, Cap 9 (sections 3A and 3B(1))

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, "Velos Enterprises Ltd v Paragon Electronics Limited [2017] KECA 525 (KLR)", Case Analysis (2017). Civil Application No. NAI 282 of 2012 (UR 240/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/525/eng@2017-04-28

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