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Court of AppealOtherCivil Appeal No. 84 of 2012· [2020] KECA 930 (KLR)

The Attorney General v Torino Enterprises Limited

Court of Appeal
24 January 2020
DMD. K. MusingaSKS. Gatembu KairuKMK. M'Inoti
1,607 words in judgment
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The bottom line

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Kenya's Court of Appeal excused a ten-month filing delay, confirming courts will prioritise a fair hearing over strict deadlines.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Nairobi (Musinga, Gatembu and M'Inoti, JJA) in an appeal by the Attorney General against a High Court judgment (Gacheche, J., 4 July 2011) which found that the Department of Defence had unlawfully encroached on land (LR No. 22524) belonging to Torino Enterprises Ltd and directed restoration of possession or payment of Kshs 1,530,000,000. On 22 February 2019 the Court of Appeal granted the appellant leave to adduce additional evidence, with the respondent to file a replying affidavit within 14 days of service. The appellant served its additional evidence on 8 March 2019, but the respondent did not file its replying affidavit and supplementary record until 3 December 2019 - a delay of about ten months. When the appeal came up for hearing on 9 December 2019, the respondent informally applied to have those documents, together with written submissions and a list of authorities, admitted out of time. The appellant objected that the delay was inordinate and intended to ambush it, and further that the rebuttal documents were classified 'secret' and inadmissible under sections 79-82 of the Evidence Act. The Court held that although timelines must be respected, it retains an unfettered discretion to extend time in the interests of justice, balancing Article 159(2)(b) against Article 159(2)(d). The delay was explained by the need to source rebuttal evidence, and the ambush concern had fallen away. The admissibility objection was premature. The application was allowed; the documents were deemed filed on time, admissibility objections were reserved to the hearing, and costs of the objection were to abide the outcome of the appeal. The appeal itself remains pending.

Key legal issues

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01

Discretion to extend time for filing documents despite inordinate delay

Holding

The Court may excuse non-compliance with timelines it has set where the interests of justice so demand, applying Article 159(2)(b) and (d) and the overriding objective

Reasoning

The Court held that two constitutional principles from Article 159 are in play: justice shall not be delayed, and justice shall be administered without undue regard to procedural technicalities. These call for pragmatic balance rather than robotic adherence. Although the ten-month delay was not insubstantial, the respondent explained it needed time to source rebuttal evidence to the appellant's newly admitted additional evidence. Denying the respondent a chance to respond would not serve the ends of justice, and the ambush concern fell away since the appellant would now have time to consider the rebuttal.

p. 2
02

Sequencing of extension-of-time applications and admissibility objections

Holding

Admissibility and relevance objections are premature at the extension-of-time stage and must be determined at the hearing of the appeal

Reasoning

The Court held that the appellant conflated the question of extension of time with the question of the relevance and admissibility of the respondent's rebuttal evidence. The only issue before the Court was whether to extend time and deem the documents filed within time. Once that was determined, the Court hearing the appeal would have a proper opportunity to weigh the evidence and determine its admissibility and relevance relative to the appellant's additional evidence.

p. 2

Legal principles established

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  • Although timelines set by the Court must be strictly adhered to, the Court retains discretion to extend time where the ends of justice demand, balancing Article 159(2)(b) against Article 159(2)(d)
  • An objection to the relevance and admissibility of evidence cannot be determined before and separately from an application for extension of time; it is reserved to the hearing of the appeal

Court orders

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  1. 1.The respondent's informal application for extension of time is allowed
  2. 2.The respondent's replying affidavit, supplementary record of appeal, written submissions and list and digest of authorities are deemed filed on time
  3. 3.Any objections as to relevance and admissibility of that evidence to be dealt with at the hearing of the appeal
  4. 4.Costs of the objection to abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 40
  • Evidence Actsections 79, 80, 81 and 82

Cases cited (1)

  • Kensilver Express Ltd & 137 Others v. Commissioner of Insurance & 4 Others
    CA No Nai. 39 of 2009

    The overriding objective requires courts to act justly, apply proportionality, level the playing field and dispose of disputes on merits rather than technicalities

On appeal from
High Court of Kenya at Nairobi
HC Pet No. 38 of 2011
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over appeals from the High Court (Constitution Article 164; Court of Appeal Rules) - not expressly stated in the ruling

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "The Attorney General v Torino Enterprises Limited", Case Analysis (2020). Civil Appeal No. 84 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/930/eng@2020-01-24

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