Maria Cristina Menon v Giorgio Berti & another [2017] KECA 634 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time for an appeal because the applicant waited over two years without a good explanation for the delay.
What this practically means
#Executive summary
#Key legal issues
#Factors governing extension of time under rule 4
The discretion is unfettered but guided by length of delay, reasons for delay, chances of appeal succeeding, and prejudice to respondent.
Drawing on Leo Sila Mutiso and Muchugi Kiragu, the Court restated the settled criteria and emphasised that the discretion under rule 4 is unfettered and exercised on terms the court thinks just, and that an applicant should not be shut out where the appeal is arguable and no prejudice is shown.
Role of a single Judge on arguability
A single Judge is precluded from deciding the merits; arguability matters only where the appeal is patently hopeless or frivolous.
The Court held that whether the intended appeal is likely to succeed is irrelevant unless it is demonstrably patently hopeless or frivolous, since such a determination cannot be made by a single judge; arguability is considered only where the judge is otherwise satisfied beyond peradventure that the appeal is not arguable.
Sufficiency of explanation of oversight by counsel
Oversight by counsel, though natural, was neither a sufficient nor plausible explanation, particularly where coupled with a pattern of delay.
The notice of appeal was filed out of time and served 23 days late with no explanation beyond oversight; the applicant also gave inconsistent explanations before the trial court (settlement negotiations) and in this application (oversight), and gave no explanation for over two years of delay before moving the Court.
Legal principles established
#- Whether to extend time for appealing is discretionary and guided by the length of the delay, the reasons for it, the chances of the appeal succeeding, and prejudice to the respondent.
- A single Judge hearing an application under rule 52(1) acts on behalf of the full bench but cannot decide the merits; arguability of the intended appeal is irrelevant unless the appeal is patently hopeless or frivolous.
- So long as there is a sufficiently plausible reason for delay, no prejudice to the other side, and a possible appeal, extension of time will be freely granted.
- Where the reason for delay is counsel's oversight, it must be explained satisfactorily; when too many mistakes have been made the Court will decline to extend time.
Court orders
#- 1.The application is dismissed with costs
- On appeal from
- High Court (Kilifi)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time), decided by a single Judge under rule 52(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maria Cristina Menon v Giorgio Berti & another [2017] KECA 634 (KLR)", Case Analysis (2017). Civil Application (Malindi) — ruling delivered at Malindi. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/634/eng@2017-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.