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Court of AppealAllowedNot stated in the judgment· [2020] KECA 811 (KLR)

Frank Wafula v Mansukhalal Jesang Maru [2020] KECA 811 (KLR)

Court of Appeal of Kenya
3 April 2020
1,707 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 extended time to file an appeal record, confirming that short, well-explained delays won't automatically kill an otherwise arguable appeal.

What this practically means

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Executive summary

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This is a single-judge decision of the Court of Appeal at Nairobi, delivered by Asike-Makhandia, JA on 3rd April 2020, on a motion on notice dated 31st October 2019 brought under Rule 4 of the Court of Appeal Rules. The applicant sought an order that his record of appeal, filed on 30th September 2019, be deemed filed on time. He had lodged a notice of appeal on 10th May 2019 against a trial court ruling awarding adjournment costs of Kshs. 20,000, applied for certified proceedings on 8th May 2019, was told on 16th July 2019 that proceedings were ready and that he required a certificate of delay, applied for it the same day, and it was ready only on 12th September 2019, after the time to lodge the appeal lapsed on 26th August 2019. The respondent opposed, contending the delay from 26th August to 31st October 2019 (66 days) was inordinate and unexplained and that the appeal was not arguable. The single issue was whether the applicant deserved the relief sought. Applying the settled Rule 4 principles from Mwangi v Kenya Airways Ltd and Fakir Mohammed v Joseph Mugambi, the court held there is no minimum or maximum period of delay, only a requirement of satisfactory explanation; the 18-day delay after the certificate issued was not inordinate, and the merits inquiry for a single Judge is only whether the appeal 'possibly' has chances of success. The application was allowed: time was extended, the record of appeal was deemed filed on time, and costs were made to abide the outcome of the appeal.

Key legal issues

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01

Whether the delay in filing the record of appeal was inordinate and satisfactorily explained

Holding

The delay of about 18 days after issuance of the certificate of delay, with the record filed less than 30 days later, was not inordinate; the delay was well explained, attributable in part to the late issuance of the certificate of delay and to financial constraints.

Reasoning

The court held that the law prescribes no minimum or maximum period of delay, only that it be satisfactorily explained. The applicant attributed the delay to the late issuance of the certificate of delay and to difficulties raising legal fees and disbursements. On the facts, an 18-day delay after the certificate issued, with the record filed within a further 30 days, was neither unreasonable nor inordinate.

p. 2
02

Whether the intended appeal was arguable

Holding

The single Judge need only ask whether the appeal 'possibly' has chances of success; definitive merits determination is reserved for the full court.

Reasoning

Relying on the court's prior decisions, the Judge reiterated that the merits consideration in a Rule 4 application is prefixed with the word 'possibly'. It is not the role of a single Judge to determine definitively whether the intended appeal has merit, as that is for the full court if and when the appeal is presented.

p. 3
03

Whether the discretion under Rule 4 should be exercised in favour of the applicant

Holding

Yes. Taking all factors into account, the application deserved the exercise of discretion in the applicant's favour.

Reasoning

Applying the Rule 4 jurisprudence in Mwangi v Kenya Airways Ltd and Fakir Mohammed v Joseph Mugambi & 2 Others, the court considered the period and reason for delay, the arguability of the appeal and the absence of demonstrated prejudice, and concluded this was a case deserving the grant of the relief, extending time and deeming the record of appeal filed on time.

p. 3

Legal principles established

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  • Extension of time under Rule 4 is an exercise of unfettered discretion which must be exercised judicially, guided by relevant factors including the period of delay, the reason for delay, the possible chances of the appeal succeeding, and the degree of prejudice to the respondent; the list of factors is not exhaustive.
  • There is no minimum or maximum period of delay prescribed by law; the delay must simply be satisfactorily explained with clear, concise and valid reasons.
  • A single Judge considering an extension-of-time application must not determine definitively the merits of the intended appeal; the arguability consideration is only whether the appeal 'possibly' has chances of success, the full merits being for the full court.
  • Under Rule 4, a party may apply for extension of time either before or after taking the action in respect of which extension of time is sought.

Court orders

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  1. 1.Time for filing the appeal is extended
  2. 2.The record of appeal filed on 30th September 2019 is deemed to have been filed on time
  3. 3.Costs shall abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (3)

  • Mwangi v Kenya Airways Ltd
    [2003] KLR 48
  • Fakir Mohammed v Joseph Mugambi & 2 Others
    [2005] eKLR
  • Athuman Nusura Juma v Afwa Mohamed Ramadhan
    Civil Application No. 227 of 2015
On appeal from
Trial court (not named in the judgment)
Not stated
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Frank Wafula v Mansukhalal Jesang Maru [2020] KECA 811 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/811/eng@2020-04-03

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