Anne Waitherero Kaberere v Open Hire Limited & 3 others
The bottom line
#Kenya's Court of Appeal allowed a late appeal filing, holding that a short delay with a credible explanation and an arguable case outweighs prejudice to the other side.
What this practically means
#Executive summary
#Key legal issues
#Length of and explanation for the delay
A 4-day delay in filing the notice of appeal was not inordinate, and the explanation - counsel's illness and a mistake by holding counsel in recording the court's directions - was plausible and satisfactory.
The court weighed the short delay against the explanation offered. Counsel on record acted on information from holding counsel who misheard the directions at the ruling, and his own illness delayed follow-up; medical evidence was exhibited. Relying on Chemaringo and Belinda Murai, the court found mistakes pardonable and the reasons for the delay plausible.
Arguability of the intended appeal
The intended appeal was arguable, one ground being that the learned Judge misdirected herself on the facts and law relating to the lodging and removal of the caution placed by the applicant.
Examining the draft memorandum of appeal, the court was satisfied that at least one ground disclosed an arguable appeal. Following Muchugi Kiragu, it would be wrong to shut an applicant out of court where the appeal is arguable and the applicant's conduct is not inexcusable and the opponent is not prejudiced.
Prejudice to the respondent and balancing of interests
Any prejudice to the respondent from the extension could be ameliorated by an expedited hearing of the intended appeal.
The court acknowledged possible prejudice to the respondent in granting the extension but noted the applicant had already filed and served the record of appeal, albeit out of time. Balancing the competing interests, it concluded that an expedited hearing of the intended appeal would ameliorate any prejudice to the respondent.
Legal principles established
#- The Rule 4 discretion is unfettered, and the guiding factors are the length of delay, the reason for delay, the chances of the appeal succeeding and the degree of prejudice to the respondent; these factors are not exhaustive.
- Any delay must be satisfactorily explained; a plausible and satisfactory explanation is the key that unlocks the court's discretionary favour.
- A mistake by counsel, even senior counsel, does not of itself close the door of justice where the interests of justice dictate rectification.
- It would be wrong to shut an applicant out of court and deny the right of appeal where the intended appeal is arguable, the conduct is not inexcusable, and the opponent is not prejudiced.
Court orders
#- 1.The notice of appeal and the record of appeal are deemed as properly filed
- 2.The notice of appeal and record of appeal to be served on the respondents (if not already served) within fourteen (14) days from the date of the ruling
- 3.Costs of the application to abide the outcome of the appeal
- On appeal from
- Environment and Land Court of Kenya at Nairobi
- Nairobi ELC No. 2486 of 1997
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anne Waitherero Kaberere v Open Hire Limited & 3 others", Case Analysis (2021). Not stated in the judgment (Civil Application under Rule 4 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/933/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.