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Court of AppealPartially AllowedNotice of Motion dated 25th May 2018, arising from Civil Suit No. 606 of 2016 (Environment and Land Court, Nairobi)· [2018] KECA 166 (KLR)

Dolores N. Collins v John Okuna Ogango [2018] KECA 166 (KLR)

Court of Appeal of Kenya
9 November 2018
2,921 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 gave a late appellant more time to file its appeal, showing courts prioritize fair hearings over strict deadlines when delays are explained.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi, delivered by R.N. Nambuye, JA on 9th November 2018, on a Notice of Motion dated 25th May 2018 seeking, under Rule 4 of the Court of Appeal Rules, extension of time to file a fresh Notice of Appeal and the record of appeal against the judgment of the Environment and Land Court at Nairobi (K. Bor, J) in Civil Suit No. 606 of 2016, delivered on 18th September 2017, which had awarded the respondent Kshs. 5,000,000.00 as forfeiture under a sale agreement. The applicant explained that a Notice of Appeal was filed out of time on 27th September 2017, that certified proceedings were only ready on 6th February 2018 per a certificate of delay, that the last day for filing fell on a Saturday, and that the residual delay arose because the client, who bore the filing fees, was out of the jurisdiction in Kampala. The respondent countered that proceedings were ready on the day of judgment, that lack of filing fees is no excuse, and that the appeal was unarguable. The court reviewed the settled principles governing Rule 4 - length and reason of delay, arguability, and prejudice - alongside Article 159(1)(d) of the Constitution and the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act. It accepted the certificate of delay, found the delay sufficiently explained and not such as to curtail an accrued appellate right, and allowed the application: seven days to file a Notice of Appeal, fourteen days to file the record of appeal, with costs of the application to abide the intended appeal. The decision below was not under review; this was an interlocutory extension-of-time application.

Key legal issues

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01

Whether the delay in filing the record of appeal was sufficiently explained

Holding

The delay from judgment to 6th February 2018 (when certified proceedings were ready) was explained by the certificate of delay; the residual delay of about three months was explained by the last day for filing falling on a Saturday and the need to obtain court filing fees from a client out of the jurisdiction in Kampala.

Reasoning

The court accepted the certificate of delay showing proceedings were ready for collection on 6th February 2018, rejecting the respondent's contrary assertion. Sixty days from that date fell on a Saturday. The remaining delay arose from the client's obligation to pay filing fees while outside the jurisdiction, an explanation that was plausible and not seriously contested, since in law it is the client who must meet court filing fees.

p. 3
02

Whether the applicant should be denied the extension on grounds of delay

Holding

Denying the relief would amount to rendering technical rather than substantive justice and would defeat the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act.

Reasoning

Balancing the settled Rule 4 factors, the court found no prejudice demonstrated by the respondent, the record was ready for filing, and the accrued appellate right should not be curtailed. Prolonging procedural litigation would defeat the overriding objective principle. The application was therefore allowed on terms: seven days to file a fresh Notice of Appeal, fourteen days thereafter to file the record of appeal.

p. 3

Legal principles established

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  • Rule 4 confers a wide, unfettered discretion on the Court to extend time, exercised judicially on relevant but not exhaustive factors including length and reason of delay, arguability of the appeal, and prejudice to the respondent.
  • Article 159 of the Constitution does not authorize courts to derogate from express statutory procedures, but procedure should not trump substantive justice.
  • An arguable appeal is one that ought to be argued fully before the court, not one that must necessarily succeed.
  • Failure to attach a draft memorandum of appeal is not fatal to a Rule 4 application where the proceedings relied upon demonstrate arguability.

Court orders

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  1. 1.The applicant has seven days from the date of the ruling to file a Notice of Appeal
  2. 2.The applicant has fourteen days from the date of filing of the Notice of Appeal to file the record of appeal
  3. 3.The costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(1)(d); Article 159(2)(d)
  • Appellate Jurisdiction Act, 2010Sections 3A, 3B and 7
  • Court of Appeal Rules, 2010Rules 4, 42, 43(1), 82, 83

Cases cited (18)

  • Gurdev Singh Bundi & Narinder Sing Ghatora as Trustees of Ramgharia Institute of Mombasa v Abubakar Madhbuti
    [1997] eKLR
  • Hon John Njoroge Michuki & another v Kentazuga Hardware Limited
    [1998] eKLR
  • Kiragu Mwangi v James Mwangi Kagera
    [2018] eKLR
  • Imperial Bank Limited (in Receivership) and another v Alnashir Popat & 18 others
    [2018] eKLR
  • Peter Mbugua Muturi and another v James Weigwe Kaireta
    [2017] eKLR
  • David Simiyu Wanyonyi v John Silakwa & another
    [2016]
  • Jaldesa Tuke Dabelo v IEBC & Another
    [2015] eKLR
  • Raila Odinga and 5 others v IEBC & 3 others
    [2013] eKLR
  • Lemanken Arata v Harum Meita Mei Lepaka & 2 others
    eKLR
  • Patricia Cherotich Sawe v IEBC & 4 others
    [2015]
  • City Chemist (NB1) Mohamed Kasabuli suing for and on behalf of the Estate of Halima Wamukonya Kasabuli v Orient Commercial Bank Limited
    Civil Application No. Nai 302 of 2008 (UR. 199/2008)
  • Kariuki Network Limited & Another v Daly & Figgis Advocates
    Civil Application No. Nai 293 of 2009
  • Caltex Oil Limited v Evanson Wanjihia
    Civil Application No. Nai 190 of 2009 (UR)
  • Edith Gichugu Koine v Stephen Njagi Thoithi
    [2015] eKLR
  • Nyaigwa Farmers' Co-operative Society Limited v Ibrahim Nyambare & 3 others
    [2016] eKLR
  • Cargil Kenya Limited Nawal v National Agricultural Export Development Board
    [2015] eKLR
  • Mathenge v Duncan Gichane Mathenge
    [2013] eKLR
  • Richard Nchapi Leiyagu v IEBC & 2 others
    Civil Appeal No. 18 of 2013
On appeal from
Environment and Land Court at Nairobi
Civil Suit No. 606 of 2016
Jurisdiction invoked
Article 159(1)(d) of the Constitution of Kenya, 2010; Sections 3A, 3B and 7 of the Appellate Jurisdiction Act, 2010; Rules 4, 42 and 83 of the Court of Appeal Rules, 2010

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, "Dolores N. Collins v John Okuna Ogango [2018] KECA 166 (KLR)", Case Analysis (2018). Notice of Motion dated 25th May 2018, arising from Civil Suit No. 606 of 2016 (Environment and Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/166/eng@2018-11-09

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