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Court of AppealAllowedCivil Appeal No. 59 of 2020· [2021] KECA 244 (KLR)

Bethsaida Resort & Spa Limited v Gauderlot (Civil Application E002 of 2020) [2021] KECA 244 (KLR)

Court of Appeal of Kenya
3 December 2021
JLJ. Lesiit
1,208 words in judgment
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The bottom line

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Kenya's Court of Appeal let Bethsaida Resort file its appeal late, accepting Covid-19 court disruptions as a valid reason for the 104-day delay.

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 Nairobi, brought under rules 4 and 41 of the Court of Appeal Rules by Bethsaida Resort and Spa, seeking an extension of time to file a Memorandum and Record of Appeal against a ruling of the Environment and Land Court at Mombasa delivered on 16th December 2019, and deeming the record of appeal lodged on 24th August as properly filed. The dispute arose out of Kwale CMCC No. 507 of 2017, concerning assessed costs of Kshs. 874,750 under the Advocates Remuneration Order, the substantive matter having already been settled. The applicant explained that an application for leave to appeal was pending when the notice of appeal was filed, that leave was granted on 10th March 2020, and that the Chief Justice's Covid-19 directive of 15th March 2020 scaled down court operations, disrupting registry business and counsel's offices, resulting in a delay of approximately 104 days. The respondent filed no papers in opposition, indicating it would await the court's decision. Applying the established criteria in Leo Sila Mutiso v Rose Helen Wangari Mwangi - length of and reason for delay, arguability of the appeal, and prejudice to the respondent - the court found the delay satisfactorily explained, the appeal sufficiently arguable, and no prejudice to the respondent. The application was allowed with costs to abide the outcome of the appeal.

Key legal issues

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01

Whether the 104-day delay in filing the record of appeal was adequately explained

Holding

Yes. The delay was explained by the pending application for leave to appeal and the Covid-19 scale-down of court operations announced by the Chief Justice on 15th March 2020.

Reasoning

The court found the applicant had acted diligently: a notice of appeal was lodged on 18th December 2019, leave was granted on 10th March 2020, and the Covid-19 directive disrupted court registries and counsel's offices immediately after. The applicant was therefore not an indolent litigant and the delay was satisfactorily explained.

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02

Whether the intended appeal was arguable and whether the respondent would be prejudiced

Holding

The appeal had sufficiently strong chances of success and the respondent would suffer no prejudice, as the substantive matter had already been settled and only costs under the Advocates Remuneration Order were in dispute.

Reasoning

The applicant contended the appeal concerned a grave misapplication of the Advocates Remuneration Order: the plaintiff sued for Kshs. 4,500,000 being the deposit, not the value of the property of Kshs. 45,000,000, and Kshs. 874,750 was a substantial sum. The court was satisfied the respondent stood to suffer no prejudice.

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Legal principles established

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  • Extension of time is discretionary; the court considers the length of and reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.The application is allowed with costs to abide the outcome of the appeal
  2. 2.Extension of time for filing the Memorandum and Record of Appeal against the Ruling and Order of the Environment and Land Court at Mombasa
  3. 3.The Record of Appeal lodged on 24th August 2020, being Civil Appeal No. 59 of 2020, deemed properly filed

Authorities

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Legislation

  • Court of Appeal RulesRules 4 and 41
  • Advocates Remuneration Order

Cases cited (1)

  • Leo Sila Mutiso v. Rose Helen Wangari Mwangi
    Civil Application No NAI 251 of 1997 (unreported)
On appeal from
Environment and Land Court of Kenya at Mombasa
Jurisdiction invoked
Rules 4 and 41 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, "Bethsaida Resort & Spa Limited v Gauderlot (Civil Application E002 of 2020) [2021] KECA 244 (KLR)", Case Analysis (2021). Civil Appeal No. 59 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/244/eng@2021-12-03

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