Sammy Mwangi Kiriethe & 2 others v Kenya Commercial Bank Ltd [2020] KECA 454 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal despite a 328-day delay, because bad legal advice caused it and the right to appeal outweighed prejudice to the bank.
What this practically means
#Executive summary
#Key legal issues
#Principles governing extension of time under rule 4
The court considers the length of the delay, the reason for the delay, the chances of success of the intended appeal and the degree of prejudice to the respondent.
The single judge restated the settled rule 4 criteria. Although the 328-day delay was inordinate, he accepted the applicants' explanation that former advocates had misadvised them that the judgment was entirely in their favour, which they only learned in mid-January 2019. The intended appeal was found arguable, and the prejudice to the applicants in losing their right of appeal outweighed the prejudice to the respondent, notwithstanding the long litigation history.
Balancing of prejudice between the parties
The prejudice to the respondent in prolonging 23-year-old litigation is outweighed by the prejudice the applicants would suffer if denied their constitutional right of appeal.
The respondent argued it would be prejudiced by continued litigation dating back to 1997. The judge acknowledged this but held that the applicants' pursuit of redemption of two property titles wrongfully held by the respondent engaged their constitutional right of appeal, and that the applicants' prejudice from being shut out of appeal outweighed the respondent's.
Legal principles established
#- In an extension-of-time application the single judge makes only a prima facie assessment of the chances of success, so as not to usurp the powers of the full court.
- The Court's discretion under rule 4 is unfettered but must be exercised judicially on sound factual and legal basis.
Court orders
#- 1.Application allowed and orders sought granted
- 2.Applicants to file and serve the notice of appeal within seven (7) days from the date of delivery of the ruling
- 3.Extension of time granted to apply for and serve typed proceedings out of time
- 4.Applicants to bear the costs of the application
- On appeal from
- High Court of Kenya at Nyeri
- H.C.C.C. No. 328 of 1999
- 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, "Sammy Mwangi Kiriethe & 2 others v Kenya Commercial Bank Ltd [2020] KECA 454 (KLR)", Case Analysis (2020). Civil Application No. 7 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/454/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.