Kenya Commercial Bank Limited & 7 others v Pondeni Farmers Co-operative Society Limited & & 26 others [2018] KECA 684 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the full Court could hear the extension-of-time application ordinarily assigned to a single judge
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.
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.
Whether the delay in filing the record of appeal was excusable
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.
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.
Whether the notice of appeal should be struck out for breach of Rule 82(1)(a) & (b)
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.
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.
Legal principles established
#- 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
#- 1.Dismissal of KCB's motion to strike out the notice of appeal
- 2.Allowance of Pondeni Farmers' motion for extension of time
- 3.Extension of time for the intended appellants to file the record of appeal within 21 days from the date of the ruling
- 4.Costs of the applications to be costs in the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.