Attorney General v Emfil Limited & 17 others [2020] KECA 649 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Principles governing extension of time under Rule 4
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
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.
Effect of unexplained institutional delay by a state actor
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
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.
Chances of success of the intended appeal
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
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.
Legal principles established
#- 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
#- 1.Prayer 2 of the applicant's notice of motion dated 8th June 2018 allowed - extension of time to file the appeal granted
- 2.The applicant to bear the 1st respondent's costs of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.