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Court of AppealDismissedNot stated in judgment (application under Rule 4 of the Court of Appeal Rules filed 18th March 2020)· [2021] KECA 849 (KLR)

Azim Jiwa Rajwani v Fidelity Commercial Bank (Now SBM Bank Limited) [2021] KECA 849 (KLR)

Court of Appeal
19 March 2021
JMJ. Mohammed
2,152 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 refused to extend time for a bank customer's appeal because he could not satisfactorily explain the delay in filing.

What this practically means

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Executive summary

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This is a single-judge Court of Appeal ruling (J. Mohammed, JA) on a Rule 4 application by Azim Jiwa Rajwani seeking extension of time to file and serve a memorandum and record of appeal against a judgment of the High Court of Kenya at Nairobi (Tuiyott, J.). The applicant attributed the delay to the late supply of a certificate of delay by the Deputy Registrar, contending the delay was neither intentional nor inexcusable and that the intended appeal was arguable. The respondent, Fidelity Commercial Bank (now SBM Bank Limited), countered that the applicant was already out of time when he sought the certificate, that he could have filed an initial record of appeal and supplemented it later, and that the application was an attempt to deny the bank the fruits of its judgment. The court restated the settled Rule 4 principles from Leo Sila Mutiso v Hellen Wangari Mwangi, as expanded in Fakir Mohammed, Muringa Company Ltd and Andrew Kiplagat Chemaringo, emphasising that any delay must be satisfactorily explained. The certificate of delay showed 362 days were consumed compiling the proceedings, so the 60-day period under Rule 82(1) ran from 6th December 2019; the motion, filed 18th March 2020, was nonetheless held unexplained. Balancing the competing interests, the court found the applicant had not demonstrated the Mutiso parameters and dismissed the application with costs to the respondent. The decision below was not disturbed, as the ruling concerned only leave to appeal out of time.

Key legal issues

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Whether extension of time to institute an appeal should be granted

Holding

Application dismissed; the delay was not satisfactorily explained.

Reasoning

The court applied the Leo Sila Mutiso factors: length of delay, reason for delay, arguability, and prejudice. The certificate of delay showed 362 days taken to compile proceedings, so the 60-day period under Rule 82 ran from 6th December 2019, yet no adequate explanation was given for not filing within that window, and the applicant failed to establish entitlement to the discretionary relief.

p. 3

Legal principles established

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  • The factors for extension of time under Rule 4 are discretionary and non-exhaustive; delay must be satisfactorily explained.

Court orders

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  1. 1.Application dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82(1)
  • Court of Appeal RulesRule 115

Cases cited (8)

  • Imperial Bank Limited (In Receivership) & Another v Alnashir Popat & 18 others
    [2018] eKLR
  • Wakaba Ndegwa & another v Lucy Nyaguthii
    [2017] eKLR
  • Gerald Kithu Muchanje v Catherine Muthoni Ngare & another
    [2020] eKLR
  • County Government of Mombasa v Kooba Kenya Limited
    [2019] eKLR
  • Leo Sila Mutiso v. Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Fakir Mohammed v. Joseph Mugambi & 2 others
    (2005) eKLR
  • Muringa Company Ltd v. Archdiocese of Nairobi Registered Trustees
    Civil Application No. 190 of 2019
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR
On appeal from
High Court of Kenya at Nairobi
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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Later judgments citing this (2)

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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, "Azim Jiwa Rajwani v Fidelity Commercial Bank (Now SBM Bank Limited) [2021] KECA 849 (KLR)", Case Analysis (2021). Not stated in judgment (application under Rule 4 of the Court of Appeal Rules filed 18th March 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/849/eng@2021-03-19

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