Delta Hauklage Service Ltd v Complast Industries Ltd [2017] KECA 598 (KLR)
The bottom line
#Kenya's Court of Appeal granted extra time to appeal, ruling a short delay caused by a lawyer's bereavement was understandable, though the applicant paid costs for slow follow-up.
What this practically means
#Executive summary
#Key legal issues
#Whether the 6-day delay in filing the notice of appeal was inordinate
The 6-day delay was not inordinate, having been caused by the applicant's counsel's bereavement following the death of his father, and was in any event satisfactorily explained.
Counsel swore that he lost his father and was away for two weeks. The court held it was hardly likely an advocate would invoke a parent's death falsely, and that opposing counsel should not have demanded documentary proof such as a death certificate. A delay of six days on those facts could not be described as inordinate and was satisfactorily explained.
Whether the 26-day delay in applying for extension of time after striking out was explained
The applicant bore the burden of explaining the 26-day delay in moving for extension of time, which the court noted he should have moved with greater dispatch to meet, but the delay was weighed in the overall circumstances.
The court distinguished between the delay in filing the notice (explained by bereavement) and the 26/27-day delay in seeking extension after the notice was struck out on 17th November 2015. The applicant conceded the striking-out application and ought to have acted with dispatch; the burden of explanation reposed on him. The court treated this as a factor weighing against the applicant but not dispositive in light of the arguable appeal and compensable prejudice.
Whether the intended appeal is arguable and whether prejudice is compensable
The grounds of appeal reflect a prima facie arguable appeal relating to a material damage claim, and any prejudice to the respondent could be redressed by an award of costs.
Counsel for the applicant submitted the appeal concerns a material damage claim and is arguable. The respondent argued prejudice because the cause of action accrued in 2004 and the claim had become time-barred. The court found the grounds prima facie arguable, noted that unless the judgment was impugned on appeal the applicant would lose his right to be heard on the merits, and held costs could redress any prejudice.
Legal principles established
#- An applicant under rule 4 bears the burden of giving a satisfactory explanation for the delay in applying for extension of time, of showing that the intended appeal is arguable, and that no prejudice will be caused to the respondent which cannot be compensated by costs.
- A short delay in filing a notice of appeal attributable to an advocate's bereavement is not inordinate and may be regarded as satisfactorily explained; where the intended appeal is prima facie arguable and any prejudice is compensable by costs, extension of time ought to be granted.
Court orders
#- 1.Time for lodging notice of appeal extended to the end of 14 days from the date of the ruling
- 2.The notice of appeal to be filed on or before the expiry of 14 days from the date of the ruling
- 3.Applicant to pay the respondent costs of the application in any event
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi High Court Civil Case No. 1058 of 2006
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretion to extend time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Delta Hauklage Service Ltd v Complast Industries Ltd [2017] KECA 598 (KLR)", Case Analysis (2017). Civil Application (Nairobi) — Notice of Motion dated 10th December 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/598/eng@2017-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.