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Court of AppealPartially AllowedCivil Application (Notice of Motion dated 3rd October, 2021) in Civil Appeal No. 71 of 2019· [2021] KECA 318 (KLR)

Faith Jerop Kiu & 1 other v Patrick Wanyonyi Khaemba & 3 others

Court of Appeal of Kenya
17 December 2021
RNR. N. Nambuye
2,753 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 allowed a late notice of appeal filed seven days late, showing short delays can be excused when justice demands a hearing.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by Nambuye, JA, on a Notice of Motion dated 3rd October, 2021 seeking to deem a notice of appeal, filed on 13th August, 2019, as properly on record. The applicants were parties to Eldoret High Court Petition No. 18 of 2017, decided by Omondi, J on 22nd July, 2019. Their notice of appeal was lodged seven days out of time under Rule 75 of the Court of Appeal Rules, and the application was brought under Rule 4 read with sections 3, 3A and 3B of the Appellate Jurisdiction Act and Articles 159 and 259(1) of the Constitution. The 1st respondent supported the application, relying on the earlier refusal by Kiage, JA of his own similar application, while the 2nd to 4th respondents opposed, arguing res judicata under section 7 of the Civil Procedure Act, applicant indolence, absence of an arguable appeal, and prejudice. The court applied the crystallized Salat factors: it found the seven-day delay not inordinate by comparison with George Mwende and Aviation Cargo; accepted the explanation for the delay as excusable; held the intended challenge to the inordinately low damages award and the exercise of judicial discretion possibly arguable despite the absence of a draft memorandum; and weighed the constitutionally entrenched right to be heard against the respondents' claimed prejudice. Invoking Article 159(2)(d) and the court's inherent power under Rule 1(2), the court allowed the application, extended time nunc pro tunc, deemed the notice of appeal properly filed and served, and ordered costs of the application to abide the outcome of Civil Appeal No. 71 of 2019.

Key legal issues

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01

Length and explanation of delay

Holding

A seven-day delay in filing the notice of appeal is not inordinate and the explanation that the applicants learned of the judgment late is excusable

Reasoning

The court compared the seven-day delay with authorities where twenty months and six months delays led to refusal of extension, and found the delay here much less and thus not inordinate. It nonetheless stressed that a short delay alone is not decisive and proceeded to consider the remaining Salat factors before granting relief.

p. 4
02

Arguability of the intended appeal

Holding

The intended appeal on the inordinately low award of damages and improper exercise of judicial discretion is arguable; the appeal need not succeed, only warrant interrogation

Reasoning

Although no draft memorandum of appeal was annexed, the court held that grievances could be discerned from the submissions. Applying the 'possibly arguable' standard, a challenge to an award of damages as inordinately low and to the exercise of judicial discretion suffices for arguability without deciding merits.

p. 4
03

Right to be heard versus prejudice to respondents

Holding

The constitutionally entrenched right to appellate justice outweighs the respondents' alleged prejudice of having to trace witnesses

Reasoning

The court weighed the right to a hearing, which is the cornerstone of the rule of law, against the prejudice claimed by the 2nd to 4th respondents. Finding no valid reason to withhold relief, it invoked Article 159(2)(d) and the court's inherent power under Rule 1(2) to validate the appellate process in the interests of justice.

p. 5
04

Res judicata objection

Holding

The plea of res judicata based on the dismissal of the 1st respondent's similar application did not preclude the applicants' application

Reasoning

The 2nd to 4th respondents argued that because Kiage, JA had declined the 1st respondent's extension application, the applicants' application offended section 7 of the Civil Procedure Act. The court did not uphold the objection, instead determining the application on the Rule 4 factors on its own merits.

p. 5

Legal principles established

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  • The four Salat factors govern Rule 4 extension-of-time applications: length of delay, reason for delay, possible arguability of the intended appeal, and prejudice to the opposite party
  • A short delay of seven days in lodging a notice of appeal is not inordinate
  • A non-inordinate delay alone does not entitle an applicant to extension; all factors must be considered
  • Where no draft memorandum of appeal is annexed, arguability may be discerned from other supportive facts
  • Article 159(2)(d) is not a panacea for all procedural ills, but shutting out a litigant where statutory power exists to extend time amounts to rendering justice on technicalities

Court orders

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  1. 1.Extension of time within which to file and serve a notice of appeal is granted to the applicants
  2. 2.The period for lodging and service of the notice of appeal is extended to the date the notice of appeal was lodged and served
  3. 3.The notice of appeal filed on 13th August, 2019 is deemed as properly filed and served
  4. 4.Costs of the application to abide the outcome of Appeal No. 71 of 2019
On appeal from
High Court of Kenya at Eldoret
Petition No. 18 of 2017
Jurisdiction invoked
Articles 159 and 259(1) of the Constitution; sections 3, 3A and 3B of the Appellate Jurisdiction Act (Cap 9); Rules 1(2), 4, 42, 43(1) and 77 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 (7)

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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, "Faith Jerop Kiu & 1 other v Patrick Wanyonyi Khaemba & 3 others", Case Analysis (2021). Civil Application (Notice of Motion dated 3rd October, 2021) in Civil Appeal No. 71 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/318/eng@2021-12-17

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