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Court of AppealPartially AllowedCivil Application (Nairobi) — Notice of Motion dated 10th December 2015· [2017] KECA 598 (KLR)

Delta Hauklage Service Ltd v Complast Industries Ltd [2017] KECA 598 (KLR)

Court of Appeal of Kenya
31 March 2017
1,840 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 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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by G. B. M. Kariuki, SC, on a notice of motion dated 10th December 2015 invoking rule 4 of the Court of Appeal Rules for extension of time to file a notice of appeal and record of appeal against the judgment of Mabeya J in Nairobi High Court Civil Case No. 1058 of 2006 delivered on 22nd May 2015. The applicant's notice of appeal was filed six days late and served out of time, and was struck out on 17th November 2015 by consent. The applicant attributed the delay to counsel's two-week absence following the death of his father. The respondent opposed, contending the delay of approximately seven months was unexplained and prejudicial, the cause of action having accrued in 2004. The court held the six-day delay was not inordinate and was satisfactorily explained by the bereavement, observing that an advocate would not falsely invoke a parent's death and that opposing counsel ought not to have demanded a death certificate. It noted, however, that the applicant bore the burden of explaining the 26-day delay in seeking extension after the striking-out and of showing an arguable appeal and absence of irreparable prejudice. Finding the grounds prima facie arguable and any prejudice compensable by costs, the judge allowed the application, extended time for lodging the notice of appeal to the expiry of 14 days from the ruling, and ordered the applicant to pay the respondent's costs of the application in any event.

Key legal issues

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01

Whether the 6-day delay in filing the notice of appeal was inordinate

Holding

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.

Reasoning

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.

p. 3
02

Whether the 26-day delay in applying for extension of time after striking out was explained

Holding

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.

Reasoning

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.

p. 3
03

Whether the intended appeal is arguable and whether prejudice is compensable

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Time for lodging notice of appeal extended to the end of 14 days from the date of the ruling
  2. 2.The notice of appeal to be filed on or before the expiry of 14 days from the date of the ruling
  3. 3.Applicant to pay the respondent costs of the application in any event

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 75(1)
  • Court of Appeal Rulesrule 77(1)

Cases cited (2)

  • Aineah L. Njirah v Aga Khan Health Service, Civil Application Nai 246 of 2013 (unreported)
  • Pan African Life Assurance Ltd v Carolyne Chegero Vereso [2015] eKLR
    [2015] eKLR
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

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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, "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.