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Court of AppealDismissedCivil Application No. Nai. 000 of 2019 (Rule 4 application)· [2020] KECA 712 (KLR)

Bake N Bite (Nairobi) Limited & another v Bakehouse Investments Limited [2020] KECA 712 (KLR)

Court of Appeal of Kenya
24 April 2020
1,602 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend a nine-month-late appeal deadline because the applicant explained illness and unpaid fees only for part of the delay.

What this practically means

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Executive summary

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This is a single-Judge (W. Ouko, JA) decision of the Court of Appeal on a Rule 4 application by the 2nd applicant seeking enlargement of time to file and serve a notice and record of appeal out of time. The applicant sought to challenge a High Court ruling by Sewe, J (delivered 12th November 2018) dismissing his application to set aside summary judgment of 26th October 2016 in favour of the respondent in the sum of Kshs. 27,267,520, entered after the applicants failed to enter appearance or file a defence despite service. The notice of appeal was due within 14 days under Rule 75(2) of the Court of Appeal Rules, but the application was brought nine months later. The applicant attributed the delay to Bipolar Mood Disorder and loss of memory, and to lack of instructions to counsel due to non-payment of fees. The Judge found the delay inordinate by any standard in proportion to the 14-day window, and noted that the medical documents did not cover the entire period and that the applicant had been able to read the ruling in December 2018. Applying the settled factors from Leo Sila Mutiso, the Judge held that non-payment of counsel's fees could not excuse the delay and that an extension would prolong the respondent's enjoyment of the judgment. The Judge also rejected the respondent's submission that leave was required, holding an appeal lies as of right under Order 43 rule 1. The application was dismissed with costs against the 2nd applicant.

Key legal issues

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01

Whether leave to appeal is required before seeking extension of time

Holding

No leave is required; an appeal lies as of right from an order dismissing an application to set aside judgment in default of appearance under Order 43 rule 1.

Reasoning

The respondent argued the application was premature for lack of leave. The single Judge rejected this, noting that Order 43 rule 1 of the Civil Procedure Rules provides an appeal as of right from orders relating to setting aside judgment in default of appearance or judgment or dismissal for non-attendance. However, this did not assist the applicant because the delay itself remained unexplained and inordinate.

p. 2
02

Whether the nine-month delay was inordinate and explained

Holding

The delay was inordinate and not satisfactorily explained; the medical documents did not cover the whole period and lack of fees was no excuse.

Reasoning

The notice of appeal was due within 14 days but the application came nine months later. The medical report from Mathari Hospital evidenced Bipolar Mood Disorder but no dementia; the applicant himself conceded he could read and understand the ruling on 14th December 2018, yet took no action for nine months. Non-payment of counsel's fees could not excuse the delay, particularly for counsel who must know the importance of timelines in litigation.

p. 2
03

Whether the intended appeal was meritorious

Holding

The Judge, without deciding definitively, expressed doubt about the prospects of the intended appeal.

Reasoning

While cautioning that a single judge should not definitively determine the merits, the Judge observed that it was doubtful, ex facie, that the High Court Judge's exercise of discretion in refusing to set aside summary judgment could be faulted, given the applicants' acknowledged indebtedness and failure to respond to the summary judgment application.

p. 2

Legal principles established

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  • The discretion to extend time is wide and unfettered but must be exercised judiciously and upon reason, considering the length of and reasons for the delay, prejudice, conduct of parties, and possible chances of success.
  • In an application for extension of time, the whole period of delay must be declared and explained satisfactorily to the Court.
  • A single judge's assessment of the merits of an intended appeal is limited; only an ex facie obviously frivolous appeal should be refused extension of time.

Court orders

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  1. 1.The application for extension of time is dismissed
  2. 2.Costs of the application are awarded against the 2nd applicant

Authorities

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Legislation

  • Court of Appeal RulesRule 75(2)
  • Court of Appeal RulesRule 4
  • Civil Procedure RulesOrder 43 rule 1

Cases cited (5)

  • Leo Sila Mutiso v. Rose Wangari Mwangi
    Civil Application No. Nai. 255 of 1997
  • Julius Kamau Kithaka V. Waruguru Kithaka Nyaga & 2 Others
    CA. No. 14 of 2013
  • Athuman Nusura Juma V. Afwa Mohamed Ramadhan
    CA No 227 of 2015
  • County Executive of Kisumu V. County Government of Kisumu & 8 others
    Civil Application No. 3 of 2016
  • Moses Onchiri (Suing on behalf and in the interest of 475 persons being former inhabitants of KPA, Maasai Village within Nairobi) V. Kenya Airports Authority & 4 others
    (2019) eKLR
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single Judge jurisdiction to extend time)

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, "Bake N Bite (Nairobi) Limited & another v Bakehouse Investments Limited [2020] KECA 712 (KLR)", Case Analysis (2020). Civil Application No. Nai. 000 of 2019 (Rule 4 application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/712/eng@2020-04-24

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