Attorney General & another v Law Society of Kenya & 3 others [2019] KECA 733 (KLR)
The bottom line
#Kenya's Court of Appeal let a late appeal proceed, ruling a one-month delay was excusable and the case deserved to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of about one month in filing the notice of appeal was inordinate and excusable
The delay was not inordinate and the reasons given were excusable; the oversight of counsel handling the matter and the late receipt of instructions justified the delay.
Judgment was delivered on 13th April 2018 and the notice of appeal was filed on 16th May 2018 after counsel learned of the judgment through a colleague. The court held that in the circumstances the delay of about one month was not inordinate, and that the applicants' conduct and reasons were excusable rather than inexcusable, given the inadvertent failure to inform the 2nd applicant and the need for wide consultations before instructing an appeal.
Whether the intended appeal was arguable
The draft memorandum of appeal showed arguable, not frivolous, grounds; arguability suffices and success need not be shown.
The court perused the probable grounds of appeal and the draft memorandum, and found that at the very least they were arguable, citing Chemaringo and Muchugi Kiragu for the settled position that an arguable appeal is not one which must succeed, and that it would be wrong to deny a right of appeal on arguable grounds absent inexcusable conduct and prejudice.
Whether the respondents demonstrated prejudice
The respondents neither opposed the application nor appeared, and therefore could not demonstrate prejudice.
None of the respondents filed papers in opposition or appeared at the inter partes hearing despite due service. Their non-participation meant the application was uncontested and they were unable to show any prejudice they would suffer if the extension were granted, a factor relevant to the rule 4 discretion.
Legal principles established
#- The discretion under rule 4 to extend time is unfettered, and the relevant factors include length of delay, reason for delay, arguability of the intended appeal, and prejudice to the respondent.
- An arguable appeal need not be one that will ultimately succeed; it suffices that it raises issues fit for determination.
- It is wrong to shut an applicant out of court under rule 4 where the intended appeal is arguable, the action excusable, and the opponent not prejudiced.
Court orders
#- 1.The application dated 26th October 2018 is allowed in terms of prayers 1 and 2
- 2.Extension of time within which the applicants should lodge and serve a notice of appeal
- 3.The notice of appeal filed on 16th May 2018 deemed as properly filed and served
- 4.Costs shall abide the outcome of the appeal
- On appeal from
- High Court
- Nairobi Constitutional Petition No. 311 of 2016
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General & another v Law Society of Kenya & 3 others [2019] KECA 733 (KLR)", Case Analysis (2019). Civil Application (Nairobi) — Motion on Notice dated 26th October 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/733/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.