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Court of AppealPartially AllowedCivil Application (Nairobi) arising from ELC Case No. 113 of 2015; substantive appeal Civil Appeal No. 14 of 2019· [2020] KECA 649 (KLR)

Attorney General v Emfil Limited & 17 others [2020] KECA 649 (KLR)

Court of Appeal of Kenya
22 May 2020
2,919 words in judgment
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The bottom line

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Kenya's Court of Appeal let the Attorney General appeal late, even with a poor delay explanation, because the appeal was arguable and over 400 people were affected.

What this practically means

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Executive summary

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This is a single-Judge decision of the Court of Appeal (S. Gatembu Kairu, JA) on an application by the Hon. Attorney General under Rule 4 of the Court of Appeal Rules for extension of time to appeal against a ruling of the Environment and Land Court (A. Omollo, J.) delivered on 20th July 2017, in which the ELC struck out defences and entered judgment for Emfil Limited. The applicant explained its roughly seven-month delay partly by the transfer of the officer handling the matter. The 1st respondent opposed, arguing bad faith, res judicata following earlier litigation affirming its title, the applicant's indolence, and prejudice. Applying the settled Rule 4 framework - drawn from Nicholas Kiptoo Arap Korir Salat vs. IEBC and Fakir Mohamed vs. Joseph Mugambi - the Judge found the delay unsatisfactory and the applicant lacking diligence, but held the intended appeal arguable, noting that striking out a defence is a drastic remedy for the clearest of cases, that a large number of persons with interests in the suit properties were affected, and that the substantive appeal had already been filed. Balancing all factors, the court allowed prayer 2 of the motion, granting the extension, and ordered the applicant to bear the 1st respondent's costs of the application. The decision reiterates that extension of time is an equitable, discretionary remedy in which procedural default should not, absent compensable prejudice, deny a party adjudication on the merits.

Key legal issues

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01

Principles governing extension of time under Rule 4

Holding

The discretion under Rule 4 is broad and guided by factors including delay, reasons for delay, arguability, prejudice, public interest and the interests of justice; extension is not a right but an equitable remedy

Reasoning

The court drew on the Supreme Court's decision in Salat vs. IEBC and the classic statement in Fakir Mohamed vs. Joseph Mugambi, holding that the Rule 4 discretion is unfettered and that the enumerated factors are relevant but not exhaustive. It applied those factors to the applicant's roughly seven-month delay, found the explanation (transfer of the handling officer) unsatisfactory, but nonetheless weighed arguability of the appeal and the public interest affecting over 400 claimants in favour of extension.

p. 3
02

Effect of unexplained institutional delay by a state actor

Holding

Delay attributable to transfer of the handling officer is not a satisfactory explanation, yet it does not automatically defeat an extension application where other factors favour it

Reasoning

The Judge candidly found that the applicant's explanation for the delay - the transfer of the officer handling the matter and the new counsel's need to familiarise himself - was not satisfactory, and that the applicant was not diligent. However, considering that the substantive appeal had already been filed, that the intended appeal was arguable, and that numerous persons with interests in the suit properties were affected, the court balanced all factors and exercised its discretion in the applicant's favour.

p. 4
03

Chances of success of the intended appeal

Holding

The intended appeal challenging the striking out of defences was arguable, since the striking out of a defence is drastic and the Judge indicated the defence had not been seen

Reasoning

The court declined to make definitive findings on the merits but noted the applicant intended to challenge the striking out of its defence, which the ELC Judge indicated he had not seen. Given that striking out a defence is drastic and draconian and should only be granted in the clearest of cases, and invoking the Abdelghafar principle that procedural defaults at interlocutory stages should ordinarily be excused absent irreparable prejudice, the Judge was unable to say the appeal had no chance of success.

p. 4

Legal principles established

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  • Under Rule 4 of the Court of Appeal Rules, extension of time is an equitable remedy granted at the court's discretion, weighing the length of and reasons for delay, arguability of the appeal, prejudice, public interest and the interests of justice
  • A party should not be denied an adjudication on the merits because of a procedural default unless the default causes prejudice for which costs cannot compensate
  • Striking out a defence is a drastic remedy to be granted only in the clearest of cases

Court orders

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  1. 1.Prayer 2 of the applicant's notice of motion dated 8th June 2018 allowed - extension of time to file the appeal granted
  2. 2.The applicant to bear the 1st respondent's costs of the application

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3 and 3A
  • Court of Appeal Rules, 2010Rules 1, 4, 42, 43, 75, 79, 80
  • Constitution of KenyaArticle 40

Cases cited (9)

  • County Executive of Kisumu vs. County Government of Kisumu
    Civil Application No. 3 of 2016
  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others
    SC Application No. 16 of 2014 [2014] eKLR
  • Fakir Mohamed vs. Joseph Mugambi & 2 others
    [2005] eKLR
  • Mutiso vs. Mwangi
    Civil Appl. NAI. 255 of 1997 (UR)
  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR 486
  • Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General
    Civil Appl. NAI. 8/2000 (UR)
  • Murai v Wainaina (No 4)
    [1982] KLR 38
  • D. T. Dobie & Company (Kenya) Limited vs. Joseph Mbaria Muchina & another
    [1980] eKLR
  • United Arab Emirates vs. Abdelghafar & others
    1995 IRLR 243
On appeal from
Environment and Land Court
ELC Case No. 113 of 2015 (ruling of 20th July 2017)
Jurisdiction invoked
Sections 3 and 3A of the Appellate Jurisdiction Act and Rules 1, 4, 42 and 43 of the Court of Appeal Rules (extension of time under Rule 4, exercised by a single Judge)

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, "Attorney General v Emfil Limited & 17 others [2020] KECA 649 (KLR)", Case Analysis (2020). Civil Application (Nairobi) arising from ELC Case No. 113 of 2015; substantive appeal Civil Appeal No. 14 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/649/eng@2020-05-22

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