Formax Insurance Brokers Limited v Glory Car Hire Tours and Safaris Ltd [2020] KECA 385 (KLR)

Court of Appeal of Kenya

7 August 2020

HOHannah Okwengu

831 words in judgment

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The bottom line

Kenya's Court of Appeal extended time to file an appeal because the applicant acted promptly and obtained a certificate of delay covering most of the delay.

What this practically means

Executive summary

This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by Okwengu, JA on 7th August 2020, on an application for extension of time to file a record of appeal. The applicant, whose claim for Kshs.440,683 in outstanding insurance premiums had been dismissed by the Resident Magistrate's Court and whose appeal was upheld by the High Court on 16th November 2018, filed a notice of appeal in time on 30th November 2018 and promptly requested certified proceedings on 27th November 2018. The typed proceedings were ready on 10th May 2019 and the certificate of delay was issued on 10th June 2019; the motion was filed on 15th July 2019. Applying the Mutiso vs Mwangi criteria, the court held that under the proviso to Rule 82(1) the whole period from the request for proceedings to the issuance of the certificate of delay should be excluded, leaving only 35 days of delay. The applicant was found not indolent, the appeal arguably having prospects, and the respondent, having filed no response or submissions despite notice of the written-submissions procedure adopted because of the Covid-19 pandemic, would suffer no prejudice. The motion was allowed with directions that the record of appeal be filed within 30 days, and as the application was unopposed each party was ordered to bear their own costs. The ruling illustrates the court's discretionary approach to extension of time and the operation of the certificate of delay in computing time under Rule 82(1).

Key legal issues

Discretion to extend time under Rule 4

Holding

The court has discretion under Rule 4 to extend time, but the applicant must show sufficient justification, applying the Mutiso criteria: length of and reason for delay, arguability of the appeal, and prejudice to the respondent.

Reasoning

The court restated the classic Mutiso test as the governing framework for extension-of-time applications. The applicant filed the notice of appeal in time, promptly requested proceedings, and obtained a certificate of delay; the respondent filed no response and claimed no prejudice. On these facts the discretion was exercised in the applicant's favour.

p. 1

Computation of time under Rule 82(1) and the certificate of delay

Holding

Where the request for proceedings was made within 30 days of the judgment, the entire period certified as necessary for preparation and delivery of the proceedings is excluded, even beyond the date the typed proceedings were ready, up to the date the certificate of delay was issued.

Reasoning

The applicant requested proceedings on 27th November 2018, within 30 days of judgment. The court held that the excluded period ran from the request date to 10th June 2019, the date the certificate of delay was issued, since the application could not be made without the certificate. Only the remaining 35 days counted, well within the 60-day period.

p. 2

Legal principles established

The decision whether or not to extend time for appealing is discretionary, and the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
Under the proviso to Rule 82(1), where a request for proceedings is made within 30 days of the judgment, the period certified as necessary for preparation and delivery of certified copies of proceedings is excluded in computing time for filing the record of appeal.

Court orders

1.The applicant's motion for extension of time is allowed
2.The record of appeal be filed within 30 days from the date of the ruling
3.Each party shall bear their own costs

Authorities

Legislation

Court of Appeal RulesRule 4
Court of Appeal RulesRule 82(1) and its proviso

Cases cited (1)

Mutiso vs Mwangi
(1999) 2 EA 231

On appeal from: High Court; Not stated in the judgment
Jurisdiction invoked: Rule 4 of the Court of Appeal Rules (discretion to extend time for filing an appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Formax Insurance Brokers Limited v Glory Car Hire Tours and Safaris Ltd [2020] KECA 385 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/385/eng@2020-08-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.