Wardrobe Collections v L.A Group (Pty) Ltd [2020] KECA 707 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether time should be extended to file a new notice of appeal
Refused as superfluous because a timeous notice of appeal was already on record and had not been struck out or withdrawn.
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 Since the notice remained on record, un-struck and un-withdrawn, the applicant's remedy was amendment under the William Ngare authority, not a fresh notice by way of extension of time.
Whether time should be extended for filing the record of appeal
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.
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.
Legal principles established
#- 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
#- 1.Prayer 2 (extension of time to file a new notice of appeal) declined as superfluous
- 2.Prayer 3 allowed: the applicant is to file the record of appeal within sixty (60) days of 24th April 2020
- 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.Costs of the application shall be in the intended appeal
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Omar Shurie v Marian Rashe Yafar [2020] KECA 492 (KLR)[2020] KECA 492 (KLR)24 Jul 2020
Cite this brief
#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.