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Court of AppealDismissedNot stated in the judgment

Shazeen Chatur v Pramukh Cash and Carry Limited [2021] KECA 973 (KLR)

Court of Appeal of Kenya
19 February 2021
871 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to excuse a two-month appeal delay because the applicant could not honestly explain why she filed late.

What this practically means

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Executive summary

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The applicant, Shazeen Chatur, moved the Court of Appeal under Rule 4 of the Court of Appeal Rules seeking leave to file a Notice and Record of Appeal out of time against a High Court judgment delivered on 3rd October 2019. She asserted that she was out of the country when judgment was delivered and only learned of the outcome later, filing the application on 17th December 2019. The respondent opposed, contending that a person out of the country could still access email for two months, and that the application was an afterthought aimed at prolonging a tenancy due to expire in March 2020. The application was canvassed on the papers without appearances, in line with the Court's COVID-19 Practice Directions. The court applied the settled Rule 4 factors from Fakir Mohamed v Joseph Mugambi - period and reason for delay, arguability, prejudice, and related considerations - read together with the overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act. The court found the applicant's explanation wanting: the passport stamp at Heathrow dated 10th October 2019 was ambiguous as to entry or exit, and on either interpretation she was in Kenya when judgment was delivered or within time to lodge a Notice of Appeal. She also failed to attach the impugned judgment, so arguability could not be assessed. Finding no cogent explanation for the two-month delay, the single judge dismissed the application with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has given cogent reasons for the delay of two months in filing the Notice and Record of Appeal
  2. 2.Whether the extension of time under Rule 4 should be granted in the exercise of the court's unfettered discretion

Key legal issues

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01

Whether the applicant gave cogent reasons for the delay in filing the appeal out of time

Holding

No cogent explanation was offered; the passport stamp at Heathrow on 10th October 2019 did not establish absence from Kenya at delivery of judgment or within the time for filing a Notice of Appeal, so the delay of two months remained unexplained.

Reasoning

The judgment was delivered on 3rd October 2019 and notice was sent to the applicant by email. The passport stamp of 10th October 2019 was ambiguous as to whether it recorded entry or exit, and on either reading the applicant would have been in the country when judgment was delivered or within time to file the Notice of Appeal. An applicant seeking extension of time must offer a genuine and plausible explanation for the delay; an unexplained delay of two months disentitles her to the discretion.

p. 2
02

Whether the intended appeal was arguable

Holding

The court could not assess arguability because the applicant did not attach a copy of the impugned High Court judgment to the application.

Reasoning

The applicant's failure to annex the impugned judgment meant the court could not gauge whether the intended appeal was plausible. The court therefore proceeded on the deficiency in the explanation for delay, which alone sufficed to dismiss the application. This illustrates that an applicant under Rule 4 should place before the court the material, including the draft grounds and the impugned decision, needed to assess the prospects of the appeal.

p. 2

Legal principles established

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  • The Court's discretion under Rule 4 to extend time is unfettered but is guided by relevant factors including the period and reason for delay, the arguability of the appeal, and prejudice to the respondent.
  • In exercising its discretion, the court must have regard to the overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act.

Court orders

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  1. 1.The application is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority

Wrote the judgment

On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act

Relief refused

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Leave to extend time within which to file Notice and Record of Appeal out of time

The applicant failed to give a cogent explanation for the two-month delay; the passport stamp did not establish that she was out of the country when judgment was delivered or shortly thereafter

p. 2

Costs

The application is dismissed with no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the stricture of “sufficient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant.
p. 2Unfettered discretion under Rule 4
I therefore find no cogent explanation offered at all for a delay of two (2) months and accordingly I decline to exercise of my discretion in favour of extending time. That being my view of the matter, the application is dismissed with no order as to costs.
p. 2Final orders - dismissal for unexplained delay

Issues in the judgment

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minor

The name of the respondent, the case number, and the neutral citation are not stated anywhere in the judgment text provided.

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, "Shazeen Chatur v Pramukh Cash and Carry Limited [2021] KECA 973 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/973/eng@2021-02-19

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