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Court of AppealPartially AllowedCivil Application No. 50 of 2017 (Consolidated with Civil Application No. 74 of 2017)· [2018] KECA 684 (KLR)

Kenya Commercial Bank Limited & 7 others v Pondeni Farmers Co-operative Society Limited & & 26 others [2018] KECA 684 (KLR)

Court of Appeal of Kenya
22 March 2018
1,654 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 allowed a farmers' co-operative to revive its appeal after their lawyer's death caused the delay, protecting appeals lost to circumstances beyond a party's control.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Eldoret (Githinji, Okwengu and J. Mohammed, JJ.A.) on two consolidated interlocutory applications arising from an intended appeal against the judgment of Obaga, J. in Kitale High Court Petition No. 1 of 2009, delivered on 13 May 2015. Kenya Commercial Bank, an interested party in the petition, moved under Rule 83 to strike out the notice of appeal filed on 18 May 2015 on the ground that no record of appeal had been filed within the required period under Rule 82(1)(a) & (b). Pondeni Farmers Co-operative Society Limited, the intended appellant, cross-moved for extension of time to lodge the record of appeal, explaining that their advocate, a sole practitioner, died in October 2015 shortly after filing the notice of appeal and applying for proceedings, and that retrieving the file took considerable time. The Court first confirmed that, although extension-of-time applications ordinarily fall to a single judge under Rule 53(1), that rule does not oust the full Court's power under Rule 4, which the single judge merely exercises on the Court's behalf. Applying the established test that extension should ordinarily be granted absent unexplained and inordinate delay or an unarguable appeal, the Court found the delay excusable given the undisputed death of the advocate. It dismissed the striking-out motion, allowed the extension application, and granted 21 days to file the record of appeal, with costs of the applications to be costs in the appeal.

Key legal issues

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01

Whether the full Court could hear the extension-of-time application ordinarily assigned to a single judge

Holding

The full Court could properly hear it, since Rule 53(1) merely delegates the Court's power under Rule 4 to the single judge, who exercises it on the Court's behalf.

Reasoning

Rule 53(1) does not remove the Court's power under Rule 4 to extend time; it merely gives a single judge the power to hear such applications on the Court's behalf. Where appropriate, the Court may directly exercise the power, and the circumstances here justified the full Court hearing the application together with the consolidated striking-out motion.

p. 2
02

Whether the delay in filing the record of appeal was excusable

Holding

Yes. The delay was attributable to the death of the intended appellants' advocate, a sole practitioner, and the time taken to retrieve the file upon winding up of his firm; the reason was plausible and the delay excusable.

Reasoning

The death of the advocate was undisputed, and files pending in a deceased sole practitioner's office necessarily take time to resolve during the winding up of the firm. The intended appellants had acted promptly by filing the notice of appeal within 7 days of judgment and applying for proceedings, so the subsequent delay was excusable.

p. 2
03

Whether the notice of appeal should be struck out for breach of Rule 82(1)(a) & (b)

Holding

No. The grant of extension of time revived the notice of appeal, and striking it out would amount to an abuse of the court process given the circumstances beyond the intended appellants' control.

Reasoning

KCB's striking-out motion was founded solely on the absence of a record of appeal within the required period. Once extension of time was granted, the notice of appeal was revived. Striking it out where the failure stemmed from the advocate's death and its aftermath would constitute abuse of process.

p. 3

Legal principles established

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  • An application for extension of time under Rule 4 should ordinarily be allowed unless there is unexplained and inordinate delay or the intended appeal is not arguable.
  • The power to extend time under Rule 4 is an unfettered judicial discretion exercised to meet the ends of justice, and it may be exercised directly by the full Court notwithstanding Rule 53(1).
  • It is an abuse of the court process to strike out a notice of appeal where the failure to file the record of appeal was due to circumstances beyond the intended appellant's control.

Court orders

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  1. 1.Dismissal of KCB's motion to strike out the notice of appeal
  2. 2.Allowance of Pondeni Farmers' motion for extension of time
  3. 3.Extension of time for the intended appellants to file the record of appeal within 21 days from the date of the ruling
  4. 4.Costs of the applications to be costs in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 53(1)
  • Court of Appeal RulesRule 53(2)
  • Court of Appeal RulesRule 82(1)(a) & (b)
  • Court of Appeal RulesRule 83
  • Court of Appeal RulesSection 2 (definition of "Court")

Cases cited (2)

  • Mwangi vs Kenya Airways Limited
    [2003] KLR 486
  • Hon. John Njoroge Michuki vs Kentazuga Hardware Limited
    [1998] eKLR
On appeal from
High Court of Kenya at Kitale
High Court Petition No. 1 of 2009
Jurisdiction invoked
Rule 4 and Rule 53 of the Court of Appeal Rules; appellate jurisdiction over an intended appeal from the High Court

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, "Kenya Commercial Bank Limited & 7 others v Pondeni Farmers Co-operative Society Limited & & 26 others [2018] KECA 684 (KLR)", Case Analysis (2018). Civil Application No. 50 of 2017 (Consolidated with Civil Application No. 74 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/684/eng@2018-03-22

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