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Court of AppealAllowedNot stated in the judgment (Civil Application under Rule 4 of the Court of Appeal Rules)· [2021] KECA 933 (KLR)

Anne Waitherero Kaberere v Open Hire Limited & 3 others

Court of Appeal of Kenya
5 March 2021
2,060 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a single-judge application under Rule 4 of the Court of Appeal Rules seeking extension of time to file and serve a record of appeal from a judgment of the Environment and Land Court at Nairobi (K. Bor, J.) delivered on 6th November 2018 in Nairobi ELC No. 2486 of 1997, concerning Title No. Nairobi/Block 82/2380. A prior application (Civil Application No. Nai. 369 of 2018) had been allowed by Ouko (P), J.A., directing that the notice of appeal be filed within 7 days and the appeal within 30 days of service. The notice of appeal was filed 4 days late, on 16th July 2019, because holding counsel misheard the court's directions while counsel on record was unwell, as evidenced by medical exhibits. Applying the settled principles in Leo Sila Mutiso v. Hellen Wangari Mwangi as expanded in Fakir Mohammed and Muringa Company Ltd, the court found the 4-day delay not inordinate and the explanation plausible, invoking the dictum in Belinda Murai that a mistake by counsel does not close the door of justice. The draft memorandum revealed an arguable ground concerning the lodging and removal of a caution on the suit property. Finding the prejudice to the respondent ameliorable by an expedited hearing, the court allowed the application, deemed the notice and record of appeal properly filed, ordered service within 14 days, and directed that costs of the application abide the outcome of the appeal.

Key legal issues

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01

Length of and explanation for the delay

Holding

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.

Reasoning

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.

p. 2
02

Arguability of the intended appeal

Holding

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.

Reasoning

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.

p. 3
03

Prejudice to the respondent and balancing of interests

Holding

Any prejudice to the respondent from the extension could be ameliorated by an expedited hearing of the intended appeal.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The notice of appeal and the record of appeal are deemed as properly filed
  2. 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. 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

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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, "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.