Jonah Kipsaina Cherotich & 3 Others v Rael Tarlock Sawe & 2 Others
The bottom line
#The Court of Appeal refused to forgive a three-year delay in filing an appeal because the applicants never gave a convincing explanation.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the record of appeal was satisfactorily explained
The delay was inordinate and unexplained; no Certificate of Delay was produced and the current advocates did not explain their inactivity after coming on record on 17th February 2016.
The Deputy Registrar had notified previous advocates on 15th September 2015 that proceedings were ready for collection. No positive steps toward prosecuting the appeal were shown until the application of 8th August 2016, roughly six months after the new advocates came on record, and the respondents were kept from the fruits of their judgment for about three years.
Whether the intended appeal is arguable
The draft memorandum of appeal raises arguable issues, including whether the judge erred in declaring the surrender of the suit property null and void, but arguability alone did not justify extension.
The court perused the draft memorandum dated 8th May 2017 and found arguable issues, but weighed this against the unexplained delay and prejudice to the respondents, holding that an arguable appeal does not necessarily mean one which will succeed.
Balancing procedural compliance against determination on the merits
The rules must prima facie be complied with so litigation can be brought to an end; procedural default denies a hearing only where it causes prejudice costs cannot compensate.
Citing Lakha, JA, the court acknowledged the competing salutary principles of observance of rules and determination on the merits, but found no material before it to warrant exercise of discretion in the applicants' favour given the unexplained delay and prejudice.
Legal principles established
#- Extension of time under Rule 4 is a discretionary, unfettered power; the applicant must explain to the court's satisfaction why the discretion should be exercised in their favour, considering delay, reasons, prejudice and public importance.
- There is no minimum or maximum period of delay; any delay must be satisfactorily explained, and a plausible and satisfactory explanation is the key to the court's discretionary favour.
- An arguable appeal need not be one that will succeed; it suffices that it raises issues fit for determination.
Court orders
#- 1.Dismissal of the Amended Notice of Motion dated 8th May, 2017
- 2.Costs of the application to the respondents
- On appeal from
- High Court of Kenya at Eldoret
- HCCC No. 10 of 2000
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jonah Kipsaina Cherotich & 3 Others v Rael Tarlock Sawe & 2 Others", Case Analysis (2018). Civil Application No. 59 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/849/eng@2018-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.