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Court of AppealDismissedNotice of Motion dated 9th September 2021· [2021] KECA 160 (KLR)

Suchan Investment Limited v Ministry of National Heritage and Culture & 3 others (Civil Appeal (Application) E518 of 2021) [2021] KECA 160 (KLR)

Court of Appeal of Kenya
19 November 2021
Mohamed Abdulahi WarsameM. Warsame
861 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend filing deadlines where the applicant couldn't explain the delay, even though the appeal may have had merit.

What this practically means

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Executive summary

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This was a single-judge application before the Court of Appeal at Mombasa seeking extension of time under Rules 4, 42 and 43 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act to file and serve a Notice and Record of Appeal against a ruling of the High Court Judicial Review Division (C. A. Muchoki, DR) delivered on 21st July 2021, which struck out the applicant's motion for attachment of shares in LR No. 209/1916/2 on a preliminary objection. The applicant failed to lodge a Notice of Appeal within the 14 days prescribed by Rule 75 and moved the Court roughly 36 days later, attributing the delay to the High Court's failure to furnish the ruling electronically and to its own discovery of the delivery on 2nd September 2021 via the e-filing portal. Applying settled principles from Bernard Kibor Kitur, Abdul Aziz Ngoma and Daudi Kiptugen, the Court held that sufficient reason is a precondition to exercising the Rule 4 discretion, that the discretion is judicial and not founded on sympathy, and that a potentially good appeal on the merits cannot cure an unexplained delay. The applicant's inaction until 2nd September 2021 was held not to be a sufficient reason, and the application was dismissed with costs. The underlying High Court ruling was not disturbed.

Key legal issues

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01

Whether the delay of about 36 days in lodging the appeal was satisfactorily explained

Holding

No. The applicant's choice to follow up on delivery of the judgment only until 2nd September 2021 did not constitute a sufficient reason to justify extension of time.

Reasoning

The applicant attributed the delay to the High Court's failure to email the ruling, yet did not check the e-filing portal until 2nd September 2021 despite learning on 28th June 2021 that the ruling would be delivered on notice electronically. That inaction amounted to negligence and did not constitute a sufficient reason under Rule 4.

p. 2
02

The principles governing exercise of discretion under Rule 4

Holding

Extension of time is a judicial discretion exercised on fixed principles and evidence, with the burden on the applicant; merits cannot cure an unexplained delay.

Reasoning

The court restated that the discretion must not be exercised on sympathy or caprice, and that even a good case on the merits cannot save a time-barred appeal where no valid excuse for the delay exists. The provision should receive liberal construction to advance substantial justice, but only within judicial principles.

p. 2

Legal principles established

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  • The Court's discretion to extend time under Rule 4 arises only after sufficient reason for extending time has been established; only then may absence of prejudice and prospects of success be considered.
  • The discretion to extend time is judicial and must be exercised on fixed principles, evidence and sound legal principles, not on sympathy or benevolence; the burden of disclosing the material falls on the applicant.
  • Even where an applicant has a good case on the merits, if there is no valid excuse for the delay the court must dismiss the appeal as time-barred, even at the risk of injustice and hardship.

Court orders

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  1. 1.The application for extension of time to file and serve a Notice and Record of Appeal is dismissed with costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3A, 3B
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43
  • Court of Appeal RulesRule 75

Cases cited (3)

  • Bernard Kibor Kitur vs. Alfred Kiptoo Keter & Another
    [2018] eKLR
  • Abdul Aziz Ngoma vs. Mungai Mathayo & Another
    [1976] eKLR
  • Daudi Kiptugen vs. Commissioner of Lands & 6 Others
    [2021] eKLR
On appeal from
High Court of Kenya, Judicial Review Division
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 42 and 43 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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Later judgments citing this (3)

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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, "Suchan Investment Limited v Ministry of National Heritage and Culture & 3 others (Civil Appeal (Application) E518 of 2021) [2021] KECA 160 (KLR)", Case Analysis (2021). Notice of Motion dated 9th September 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/160/eng@2021-11-19

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