Bake N Bite (Nairobi) Limited & another v Bakehouse Investments Limited [2020] KECA 712 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether leave to appeal is required before seeking extension of time
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.
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.
Whether the nine-month delay was inordinate and explained
The delay was inordinate and not satisfactorily explained; the medical documents did not cover the whole period and lack of fees was no excuse.
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.
Whether the intended appeal was meritorious
The Judge, without deciding definitively, expressed doubt about the prospects of the intended appeal.
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.
Legal principles established
#- 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
#- 1.The application for extension of time is dismissed
- 2.Costs of the application are awarded against the 2nd applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.