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Court of AppealPartially AllowedNot stated in the judgment (omnibus application for extension of time under Rule 4 of the Court of Appeal Rules)· [2020] KECA 626 (KLR)

Moses Mbugua Mehta v Kenya Commercial Bank Ltd & 2 others [2020] KECA 626 (KLR)

Court of Appeal of Kenya
22 May 2020
William OukoW. Ouko
2,251 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal excused an 8-day late appeal over a lost property because the borrower was never told the judgment date, but refused a stay of execution.

What this practically means

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Executive summary

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This is a ruling of a single judge of the Court of Appeal (W. Ouko, JA, President) delivered at Nairobi on 22 May 2020 on an omnibus application for extension of time to file a notice of appeal and for stay of execution of the judgment of the Environment and Land Court at Mombasa of 27 November 2019. That court had allowed the 2nd and 3rd respondents' counterclaim arising from the lawful exercise by the 1st respondent of its statutory power of sale over the suit property, issuing a permanent injunction against the applicant, ordering him to vacate, and awarding mesne profits of Kshs. 80,000 per month. The applicant failed to file a notice of appeal within 14 days, blaming non-notification of the delivery date of the judgment. The judge applied the settled Rule 4 considerations (length of delay, reasons, prejudice, and prima facie arguability) and held that, once the Christmas recess was excluded under Rule 3(e), the delay was only 8 days and therefore not inordinate. He found the reasons for the delay satisfactory, noting the judgment date had been taken in the applicant's absence without proof of service, and that the intended appeal raised non-idle issues such as mesne profits and service of statutory notices. He declined to entertain the stay of execution prayer, it being outside a single judge's jurisdiction under Rule 5(2)(b). The application succeeded; the notice and record of appeal were deemed properly filed, service was ordered within 14 days, and costs were made costs in the appeal.

Key legal issues

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01

Computation of the length of delay where part of the period falls within the Christmas recess

Holding

The delay was only 8 days once the public holiday and the Christmas recess were excluded, which is not inordinate.

Reasoning

The judgment was delivered on 27 November 2019 and the last day for filing the notice of appeal was 11 December 2019. The notice was filed on 27 December 2019 and the application on 10 January 2020, both within the Christmas recess. Applying Rule 3(e), which excludes the vacation from the computation of time, the effective delay was only 8 days, not the 30 days contended by the 2nd and 3rd respondents, and therefore not inordinate.

p. 3
02

Reasons for the delay - non-notification of delivery of judgment

Holding

The applicant was not served with notice of the date of delivery of judgment; the judgment date was taken in his absence and he acted promptly upon learning of the judgment.

Reasoning

The record showed that the initial judgment date was taken in the applicant's absence, there was no proof he was served with notice of the ultimate date, and upon learning of the judgment he protested and immediately filed the notice and record of appeal. Although the applicant was slack in filing submissions, his conduct after learning of the judgment showed diligence.

p. 3
03

Arguability of the intended appeal

Holding

Although a single judge cannot definitively determine the merits, the intended appeal raised non-idle issues such as mesne profits and service of statutory and notification notices.

Reasoning

The judge reiterated that assessing chances of success definitively is for the full court. Nonetheless, on a prima facie view, issues such as the award of mesne profits, service of the statutory notice, and notification of sale were not idle, supporting the grant of extension of time.

p. 3
04

Jurisdiction of a single judge over stay of execution

Holding

A single judge lacks jurisdiction to determine an application for stay of execution under Rule 5(2)(b); only the extension of time prayer was properly before the judge.

Reasoning

The application was an omnibus one for extension of time and stay of execution. The judge held that stay of execution falls to be determined under Rule 5(2)(b) which is not within a single judge's jurisdiction, so only the enlargement of time prayer was considered and granted.

p. 2

Legal principles established

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  • The discretion to extend time under Rule 4 is wide and unfettered, exercised by a single judge, guided by the length of and reasons for delay, possible prejudice, and whether the intended appeal is prima facie arguable or frivolous.
  • It is not the role of a single judge to determine definitively the merits of an intended appeal; that is for the full court.
  • Unless the Court otherwise directs, the period of the Christmas vacation is not reckoned in the computation of time under the Court of Appeal Rules.
  • An application for stay of execution at the appellate stage is not within the jurisdiction of a single judge.

Court orders

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  1. 1.Application succeeds; time extended such that the notice and record of appeal already filed are deemed properly filed
  2. 2.Applicant to serve the respondents with the notice and record of appeal within 14 days from the date of the application
  3. 3.Costs will be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 75(2)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 77(1)
  • Court of Appeal RulesRule 59(1)
  • Court of Appeal RulesRule 3(e)

Cases cited (2)

  • Leo Sila Mutiso vs. Rose Wangari Mwangi
    (1999) 2 EA 231
  • Athuman Nusura Juma V. Afwa Mohamed Ramadhan
    CA No 227 of 2015
On appeal from
Environment and Land Court
Not stated
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion of a single judge to extend time for filing notice of appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Moses Mbugua Mehta v Kenya Commercial Bank Ltd & 2 others [2020] KECA 626 (KLR)", Case Analysis (2020). Not stated in the judgment (omnibus application for extension of time under Rule 4 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/626/eng@2020-05-22

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