Olerai Investments Limited v Kenya Institute of Mass Communication & another [2020] KECA 362 (KLR)
The bottom line
#Kenya's Court of Appeal gave a litigant more time to appeal after court delays and a lawyer's small mistake — late appeals can still be saved.
What this practically means
#Executive summary
#Key legal issues
#Propriety of the notice of appeal before a single Judge
A single Judge cannot determine whether a notice of appeal is valid or deemed withdrawn; that is the province of the full Court, and Rule 84 requires any striking-out application within 30 days of service.
Following Dolphin Pal Ltd v Al-Nasibh Trading Co Ltd, the Judge held that a single Judge cannot deem a notice of appeal withdrawn and act as though none existed. The respondent, having been served, did not move under Rule 84 within 30 days, and no striking-out order existed, so the application for extension of time proceeded on the assumption that the notice was proper.
Effect of failure to copy the letter bespeaking proceedings (Rule 82(2))
The default does not disqualify the applicant; it merely prevents exclusion of the Registrar-certified typing period from the computation of time.
The Judge found that counsel's inadvertent failure to copy the letter for typed proceedings meant the applicant could not benefit from the exclusion of the typing period, so the delay was computed as about 14 months, not two years. The delay was nonetheless substantially due to the late supply of typed proceedings and counsel's inadvertence, matters beyond the applicant's control.
Exercise of discretion under Rule 4
The discretion is unfettered but must be exercised judicially, guided by the length of and reason for delay, the chances of the appeal succeeding, and prejudice to the respondent.
Applying Mutiso v Mwangi and Fakir Mohammed v Joseph Mugambi, the Judge found the delay explained by the delay in typed proceedings and counsel's inadvertence; the intended appeal raised arguable grounds challenging a ruling that set aside a 17-year-old judgment; and the respondent showed no prejudice. Extension of time was therefore fair and just.
Legal principles established
#- Whether a notice of appeal is valid or deemed withdrawn is a matter for the full Court, not a single Judge.
- A single Judge considering an extension of time must proceed on the assumption that the notice of appeal on record is proper.
- Failure to copy and serve the letter bespeaking proceedings under Rule 82(2) only precludes exclusion of the typing period from the computation of time; it does not bar an extension of time application.
- Delay in the supply of typed proceedings is attributable to the court, not the party, and may justify extension of time.
Court orders
#- 1.Time for filing the intended appeal and record of appeal out of time is extended
- 2.The record of appeal shall be filed within 60 days from the date of the order
- 3.Costs of the application shall be in the appeal
- On appeal from
- Environment and Land Court (High Court, Environment and Land Division)
- H.C.C.C No. 2348 of 1996, consolidated with ELC No. 108 of 2017
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time, single Judge)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olerai Investments Limited v Kenya Institute of Mass Communication & another [2020] KECA 362 (KLR)", Case Analysis (2020). Civil Application (as stated: application under Rule 4 of the Court of Appeal Rules arising from H.C.C.C No. 2348 of 1996). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/362/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.