Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in judgment· [2017] KECA 730 (KLR)

Andrew Karani Ireri & another v NIC Bank Limited [2017] KECA 730 (KLR)

Court of Appeal of Kenya
3 March 2017
WKW. Karanja
1,550 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal excused a 40-day late appeal because the winning party hid the ruling from the other side's lawyer.

What this practically means

#

Executive summary

#
This was a single-Judge application under Rule 4 of the Court of Appeal Rules seeking leave to file a Notice of Appeal out of time against a ruling of the High Court (Olga Sewe J) delivered on 2nd September 2016. During the hearing, counsel for the applicant informally amended the application to add a prayer for leave to file the memorandum and record of appeal out of time, to which the respondent consented; the Judge, however, held that the added prayer was otiose, since leave to file the notice of appeal out of time triggers the ordinary timelines under the Court of Appeal Rules. On the main prayer, the Judge applied the settled principles from Mwangi v Kenya Airways Ltd quoting Leo Sila Mutiso v Rose Hellen Wangari Mwangi: the length of the delay, the reason for it, the chances of the appeal succeeding, and the prejudice to the respondent, while stressing that the list is not exhaustive. The delay was approximately forty days. Although the applicants did not attend court on the originally scheduled date of 29th July 2016 and their explanations were unconvincing, the respondent had extracted the order without sending it to the applicants' counsel for approval as required by Order 21 Rule 8 of the Civil Procedure Rules, which the Judge found was intended to keep the applicants unaware of the ruling and amounted to bad faith. The application was allowed, with leave to file the Notice of Appeal within seven days and costs of the application to abide the outcome of the intended appeal. The Judge expressly declined to make any findings on the arguability of the intended appeal.

Key legal issues

#
01

Principles governing extension of time under Rule 4

Holding

The well-settled factors are the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent; the list is not exhaustive.

Reasoning

The court adopted the guidelines in Mwangi v Kenya Airways Ltd quoting Leo Sila Mutiso v Rose Hellen Wangari Mwangi. The factors are considered in general terms and the single Judge retains an unfettered discretion to consider any other relevant factor, provided the discretion is exercised judiciously and not mechanically.

p. 3
02

Whether the approximately forty-day delay was inordinate

Holding

Although the applicants' reasons for failing to attend the delivery of the ruling were unconvincing, the delay was excused because the respondent extracted the order but failed to serve it on the applicants' counsel as required, in bad faith.

Reasoning

The court found the applicants did not attend court on 29th July 2016 and their explanation was not convincing. However, the respondent breached Order 21 Rule 8 by failing to send the extracted order to the applicants' counsel for approval, with no explanation, which kept the applicants unaware of the ruling. That bad faith militated against the respondent and justified allowing the extension.

p. 3

Legal principles established

#
  • Rule 4 of the Court of Appeal Rules confers an unfettered discretion on a single Judge to extend time, but that discretion must be exercised judiciously, and the factors listed in Leo Sila Mutiso v Rose Hellen Wangari Mwangi are not exhaustive.
  • Where a party extracts an order, it must be sent to the opposing counsel for approval under Order 21 Rule 8 of the Civil Procedure Rules; failure to do so, calculated to keep the opponent unaware of a ruling, is bad faith that may persuade the court to extend time notwithstanding delay.

Court orders

#
  1. 1.Applicants granted leave to file the Notice of Appeal within seven (7) days from the date of the order
  2. 2.Costs of the application to abide the outcome of the intended appeal

Authorities

#

Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure RulesOrder 21 Rule 8

Cases cited (2)

  • Mwangi –v- Kenya Airways Limited
    [2003] KLR 486
  • Leo Sila Mutiso –v- Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997 (unreported)
On appeal from
High Court
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Andrew Karani Ireri & another v NIC Bank Limited [2017] KECA 730 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/730/eng@2017-03-03

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