Sharath Ismail Ibrahim & another v Hafza Khama Ismail [2019] KECA 114 (KLR)
The bottom line
#The Court of Appeal excused a 79-day late filing in a family inheritance dispute, confirming that delays caused by waiting for court proceedings can be forgiven.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an omnibus application combining single-judge and full-bench reliefs is proper, and which relief the single judge may properly determine
- 2.Whether the 79-day delay in filing the record of appeal should be excused and the record deemed duly filed and served within time
- 3.Whether the applicants demonstrated sufficient reason, absence of prejudice and arguability to warrant extension of time under Rule 4
Key legal issues
#Omnibus relief under Rule 4
The practice of combining single-judge and full-court reliefs in one application is deprecated; the defect, however, is technical and curable, and the court treated the application as a single-judge application under Rule 4
The court adopted M'Inoti JA's decision in Riccardo Fanelli condemning omnibus motions as wasteful and a device for avoiding court fees. Rule 53(1) assigns Rule 4 applications to a single judge in the first instance, with a reference to the full court under Rule 55; Rule 5(2)(b) applications belong to the full court. Because the defect is curable under Article 159 and sections 3A and 3B of the Appellate Jurisdiction Act, only the extension-of-time relief was determined.
Whether the 79-day delay in lodging the record of appeal should be excused
Yes. The notice of appeal was filed and served in time; the delay of 79 days, measured against the nearly two years the High Court took to supply proceedings, was neither inordinate nor unreasonable, and the reasons proffered were plausible
Applying the Leo Sila Mutiso factors, the court found the delay attributable in part to the late receipt of proceedings (certificate of delay covering 19th July 2016 to 3rd July 2018) and to intervening applications in the High Court. A 79-day delay compared to the court's 2 years was not unconscionable; any inconvenience to the respondent could be ameliorated by costs, and locking the applicants out would occasion injustice as they face disinheritance.
Applicability of Salat (Supreme Court) on documents filed out of time
The Salat decision was premised on Rules 33(1) and 53 of the Supreme Court Rules and was respectfully not applicable to Rule 4 of the Court of Appeal Rules
The respondent had relied on County Executive of Kisumu to argue that documents filed out of time without leave are a nullity. The judge distinguished Salat as resting on the Supreme Court's own Rules, and contrasted Rule 4 of the Court of Appeal Rules, which expressly permits extension of time 'whether before or after the doing of the act'.
Legal principles established
#- Applications for extension of time under Rule 4 are heard first by a single judge; Rule 5(2)(b) applications must be made to the full court, and the two are separate applications that should be filed and prosecuted as such
- Extension of time is discretionary and depends on the length of the delay, the reason for the delay, prejudice to the respondent, and possibly the chances of the appeal succeeding
- An appeal filed out of time and without leave is of no effect until regularized by the Court
- Omnibus applications mixing single-judge and full-court reliefs are an undesirable practice, though the defect is technical and curable under Article 159 and the overriding objective
Court orders
#- 1.Leave granted to the applicants in terms of prayer 2 of the motion lodged on 7th February 2019, deeming the record of appeal already filed as duly filed within the prescribed time
- 2.The record of appeal to be served upon the respondent within 14 days from the date of the ruling
- 3.Costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- null
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time), heard by a single judge under Rule 53(1), with Article 159 of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Stay of execution under Rule 5(2)(b) sought in the omnibus application
Rule 5(2)(b) applications must be made to the full court; the single judge treated the application as a single-judge application and only the Rule 4 relief was properly before him
Costs
Costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
These are two separate and distinct applications that should be filed and prosecuted as such.
it is settled that whether or not to extend time for filing a notice of appeal or lodging the appeal itself is discretionary and will depend on the length of the delay; the reason for the delay; the degree of prejudice to the respondents if the application is granted; and (possibly) the chances of the appeal succeeding if the application is granted.
I think, myself, that a delay of 79 days as compared to the court’s 2 years is neither unconscionable nor unreasonable.
Of course, there is no doubt that an appeal filed out of time and without leave is of no effect until it is regularized by the Court.
In view of the question involved in the appeal, it is just and fit to grant leave to the applicant in terms of prayer 2 of the motion lodged on 7 th February, 2019. The record of appeal to be served upon the respondent within 14 days from the date of this ruling. Costs to the respondent.
Issues in the judgment
#Applicants state they received the proceedings on 3rd July 2018, yet their notice of appeal was lodged on 15th July 2016 and the certificate of delay is said to cover 19th July 2016 to 3rd July 2018; the dates as narrated do not reconcile cleanly
The applicants are described as both 'applicants' and 'appellant' without the case title or appeal number being stated in the extract
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sharath Ismail Ibrahim & another v Hafza Khama Ismail [2019] KECA 114 (KLR)", Case Analysis (2019). Not stated in the extract (Civil Application under Rule 4 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/114/eng@2019-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.