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Court of AppealDismissedCivil Application No. 119 of 2017· [2018] KECA 454 (KLR)

Ali Mohamed Mwanzia v National Bank of Kenya Limited [2018] KECA 454 (KLR)

Court of Appeal
13 July 2018
1,823 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a second chance to file an appeal out of time after a litigant wasted a previous extension and explained a five-year delay.

What this practically means

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Executive summary

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This was a reference to a full bench of the Court of Appeal at Nairobi from the decision of W. Karanja, JA (single judge) delivered on 29 September 2017, declining Ali Mohamed Mwanzia leave to file and serve a notice and record of appeal out of time against the ruling of Koome, J (as she then was) in HCCC No. 1705 of 1997, and seeking stay of execution of the resulting decree. The applicant had earlier obtained an order on 7 December 2010 in Civil Application No. 201 of 2010 extending time on condition that the record be filed within 30 days. He failed to comply, lodged the record without leave only on 7 April 2015, and on 19 May 2017 the Court struck out both the notice and record of appeal. The single judge found the applicant guilty of laches and indolence, and undeserving of a further exercise of the Court's discretion, having offered no explanation for the delay. The full bench restated the settled principles: the rule 4 discretion is unfettered and exercised judicially, considering the length of delay, the reason for it, the prospects of the appeal and prejudice to the respondent; on a reference the full court is slow to interfere absent misdirection or misapprehension of law. Citing Mwangi v Kenya Airways, Leo Sila Mutiso and Trade Bank Ltd v L.Z. Engineering, the Court held the discretion is exercised upon reason, not sympathy, found the applicant's approach cavalier, and dismissed the motion with costs to the respondent.

Key legal issues

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01

Principles governing extension of time under rule 4

Holding

The decision is discretionary and unfettered, guided by the length of the delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent, and the list is not exhaustive

Reasoning

The Court restated the settled guidelines from Mwangi v Kenya Airways Ltd, which themselves quote Leo Sila Mutiso v Rose Hellen Wangari Mwangi. The rule gives an unfettered discretion, so a judge may consider any other relevant factor; limiting the enquiry to the four listed factors would wrongly fetter the discretion. The discretion must be exercised judicially and upon reason, not sympathy.

p. 2
02

Standard of review on a reference from a single judge

Holding

A full bench will not lightly disturb a single judge's discretionary decision; it must be satisfied the judge misdirected himself, misapprehended the law or ignored a relevant matter

Reasoning

The Court articulated the classic appellate restraint applicable to references from rule 4 decisions. Finding no misdirection - the single judge had correctly identified the applicant's laches, indolence and unexplained five-year delay - the full bench could not fault her conclusion that the discretion should not be exercised in the applicant's favour.

p. 3
03

Effect of abuse of a prior extension of time and unexplained inordinate delay

Holding

An applicant who was previously granted leave out of time, failed to comply with conditions, and offers no explanation for a five-year delay does not merit a second extension

Reasoning

The applicant obtained leave on 7 December 2010 conditional on filing the record within 30 days, failed to comply, lodged the record without leave in April 2015, and had both the notice and record struck out in May 2017. His only assertion was that the application was filed in good time. The Court held the discretion is exercised upon reason, not sympathy, and found his approach cavalier.

p. 2

Legal principles established

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  • An application under rule 4 for extension of time confers an unfettered discretion on the single judge, exercised judicially, considering the length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent - factors which are not exhaustive
  • On a reference, the full Court is slow to interfere with a single judge's exercise of discretion and will do so only where the single judge misdirected himself, misapprehended the law, or failed to consider a relevant matter
  • A party who has previously been granted extension of time and abused it, and who cannot explain an inordinate delay, is undeserving of a further exercise of the Court's discretion

Court orders

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  1. 1.The motion dated 29th May 2017 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (3)

  • Mwangi vs Kenya Airways Ltd
    [2003] KLR 486
  • LEO SILA MUTISO V. ROSE HELLEN WANGARI MWANGI
    Civil Application No. Nai. 255 of 1997 (unreported)
  • Trade Bank Ltd (In liquidation) vs L.Z. Engineering Construction Ltd & Another
    Civil Appl. No. NAI. 282/98
On appeal from
Court of Appeal (decision of a single judge, W. Karanja, JA)
Civil Application No. 119 of 2017 (ruling of 29 September 2017); underlying: High Court HCCC No. 1705 of 1997 (Koome, J.)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time) and reference to full bench from a single judge's decision under the Court of Appeal Rules

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, "Ali Mohamed Mwanzia v National Bank of Kenya Limited [2018] KECA 454 (KLR)", Case Analysis (2018). Civil Application No. 119 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/454/eng@2018-07-13

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