Afapack Enterprises Limited v Punita Jayant Acharya (Suing as the Administrator of the Estate of the Late Suchila Anantrai Raval) [2018] KECA 601 (KLR)
The bottom line
#Kenya's Court of Appeal refused to overturn a judge's refusal to review an order, confirming that unexplained delay and poor diligence kill review applications.
What this practically means
#Executive summary
#Key legal issues
#Circumstances in which an appellate court may interfere with the discretionary decision of a lower court on an application for review
Interference is limited to cases where the discretion was exercised on wrong principles, on irrelevant matters, with failure to consider relevant matters, or where the decision is plainly wrong. None of these was established.
The Court adopted the classic Mbogo v Shah test. It found the Judge was alive to the correct legal principles under Order 45, and that the matters he relied on - the appellant's inordinate delay of nine months, lack of diligence, and non-disclosure/misleading of the court - were all relevant considerations properly taken into account in rejecting review.
Whether the appellant's blame of its previous advocates entitled it to review notwithstanding inordinate delay and lack of diligence
No. The appellant's own conduct - delaying three years before moving the Tribunal and nine months before seeking review - outweighed the claim of advocate negligence, and no reasonable explanation for the delay was offered.
The Court held that although the appellant attributed its predicament to counsel's mistakes, the Judge properly considered the appellant's own conduct, which demonstrated lack of diligence. The appellant knew from the 2009 plaint that no reference had been filed before the Tribunal yet did not move the Tribunal until 13 July 2012, and offered no explanation for the nine-month delay in seeking review.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a lower court unless the decision is clearly wrong, because of misdirection, reliance on irrelevant matters, failure to consider relevant matters, or a wrong conclusion.
- An application for review must be made without unreasonable delay, and an applicant must demonstrate due diligence in relation to discovery of new matter or evidence.
Court orders
#- 1.Appeal dismissed with costs
- On appeal from
- High Court
- H.C.C.C. No. 530 of 2009
- Jurisdiction invoked
- First appellate jurisdiction under the Civil Procedure Act challenging a ruling of the High Court (no specific constitutional provision invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Afapack Enterprises Limited v Punita Jayant Acharya (Suing as the Administrator of the Estate of the Late Suchila Anantrai Raval) [2018] KECA 601 (KLR)", Case Analysis (2018). Civil Appeal No. 42 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/601/eng@2018-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.