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Court of AppealPartially AllowedCivil Application No. 244 of 2019· [2020] KECA 707 (KLR)

Wardrobe Collections v L.A Group (Pty) Ltd [2020] KECA 707 (KLR)

Court of Appeal
24 April 2020
1,678 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 let a delayed appeal proceed where a lawyer's mistake caused the delay, but refused a fresh notice of appeal because a valid one was already filed.

What this practically means

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Executive summary

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This is a single-judge (Sicha JA, in chambers) ruling of the Court of Appeal at Nairobi on a Notice of Motion dated 28th July 2019 by Wardrobe Collections seeking, under Rule 4, 41 and 42 of the Court of Appeal Rules, Section 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution, extension of time to file a notice of appeal and a record of appeal in an intended appeal against the judgment of the High Court (Tuiyott J.) delivered on 28th June 2019 in Miscellaneous Application No. 225 of 2017. Judgment had been entered against the applicant; its former advocates filed a notice of appeal on 2nd July 2019 with an erroneous judgment date, then a corrected notice on 15th July 2019, but failed to apply for certified proceedings. The respondent opposed, relying on Rule 77(1) and the County Executive of Kisumu case, arguing the delay was unexplained and the date error typographical. Applying the Fakir Mohamed principles, the Court declined prayer 2 as superfluous, holding that a valid, timeous notice of appeal was already on record and that the Court cannot extend time to file a fresh notice where one exists on record - the remedy is amendment (William Ngare). It allowed prayer 3, directing the applicant to file the record of appeal within 60 days, with leave to apply further given the Covid-19 court lock-down. Costs were made costs in the intended appeal. The application was therefore partially allowed; the decision below was not disturbed.

Key legal issues

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01

Whether time should be extended to file a new notice of appeal

Holding

Refused as superfluous because a timeous notice of appeal was already on record and had not been struck out or withdrawn.

Reasoning

The initial notice of appeal was filed on 2nd July 2019 within the 14 days prescribed by Rule 75(2), albeit citing an erroneous judgment date. The respondent's counsel characterized the error as typographical. Since the notice remained on record, un-struck and un-withdrawn, the applicant's remedy was amendment under the William Ngare authority, not a fresh notice by way of extension of time.

p. 2
02

Whether time should be extended for filing the record of appeal

Holding

Allowed; the applicant was granted 60 days from the date of the ruling to file the record of appeal, with leave to apply further given the Covid-19 lock-down.

Reasoning

Rule 82(1) requires lodging the record of appeal within sixty days of the notice of appeal, with a proviso excluding time certified by the registrar for preparing proceedings where an application for proceedings is made within thirty days. The applicant's former advocates failed to apply for proceedings, but the averments were uncontested, the applicant moved the Court with due dispatch, and the delay was attributable to counsel's mistake, so the discretion under Rule 4 was exercised in the applicant's favour.

p. 3

Legal principles established

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  • The Court cannot extend time to file a fresh notice of appeal where there is a valid notice of appeal already on record filed within time; the remedy is amendment, not a fresh notice.
  • Rule 4 confers an unfettered discretion on the Court to extend time, exercised on the Fakir Mohamed factors: length of and reason for delay, chances of appeal succeeding, prejudice to the respondent, effect on public administration, importance of compliance with time limits, resources of parties, and public importance.

Court orders

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  1. 1.Prayer 2 (extension of time to file a new notice of appeal) declined as superfluous
  2. 2.Prayer 3 allowed: the applicant is to file the record of appeal within sixty (60) days of 24th April 2020
  3. 3.The applicant has leave to apply in the event it is unable to obtain proceedings necessary for compilation of the record of appeal, given the partial lock-down of courts due to the Covid-19 pandemic
  4. 4.Costs of the application shall be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 75(2)
  • Court of Appeal RulesRule 77(1)
  • Court of Appeal RulesRule 82
  • Court of Appeal RulesRule 82(1)
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 115
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Constitution of KenyaArticle 159

Cases cited (3)

  • County Executive of Kisumu V County Government of Kisumu & 8 Others
    [2017] eKLR
  • Fakir Mohamed vs. Joseph Mugambi & two others, Civil Application No. Nai. 332 of 2004
    unreported
  • William Ngare & 4 Others vrs. Public Trustee & 10 Others
    [2012] eKLR
On appeal from
High Court at Nairobi (Milimani)
Miscellaneous Application No. 225 of 2017
Jurisdiction invoked
Rule 4, 41 and 42 of the Court of Appeal Rules; Section 3A and 3B of the Appellate Jurisdiction Act; Article 159 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wardrobe Collections v L.A Group (Pty) Ltd [2020] KECA 707 (KLR)", Case Analysis (2020). Civil Application No. 244 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/707/eng@2020-04-24

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