Jayesh Autospares Ltd v Kapterit Rapid Co. Ltd & 2 others [2021] KECA 977 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal because a four-month Covid-19 delay was explained, the appeal was arguable, and no one objected.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the period of delay (four months and about six days) in filing the notice of appeal and record of appeal is inordinate and excusable
- 2.Whether the applicant has provided a satisfactory explanation for the delay
- 3.Whether the intended appeal is arguable
- 4.Whether the respondents would suffer prejudice if the extension is granted
Key legal issues
#Whether the delay of four months and about six days was inordinate and excusable
The delay was not inordinate and was sufficiently explained and excusable, given the Covid-19 closures of counsel's offices, the company and court operations.
The court compared the delay against George Mwende Muthoni (20 months unexplained) and Aviation Cargo Support (failure to explain non-filing within 60 days), where extension was declined. Here the delay was shorter, uncontroverted, and explained by the Covid-19 pandemic directives and closures, a matter in the public domain. The application was unopposed by any replying affidavit.
Whether the intended appeal is arguable
All five proposed grounds of appeal, principally alleging fraudulent acquisition and transfer of title and invalid execution of the certificate of lease, are arguable even if they may not ultimately succeed.
Applying the distilled case-law principles, the single judge held that an arguable appeal need not necessarily succeed but must warrant the court's interrogation and the opposite party's response. The proposed grounds on fraud, invalid lease execution and negligence of the 3rd respondent were sufficient to establish arguability.
Whether the respondents would suffer prejudice if extension is granted
No prejudice was demonstrated because the respondents filed no replying affidavit opposing the application.
The court noted that prejudice is a factor in balancing competing interests. In the absence of any replying affidavit from the respondents asserting prejudice, none was demonstrated to exist, so this factor favoured granting the extension.
Legal principles established
#- Rule 4 discretion is wide, unfettered and must be exercised judicially; a plausible and satisfactory explanation for delay is the key that unlocks the court's discretionary power.
- An arguable appeal is not one that must necessarily succeed but one which ought to be argued fully before court.
- Failure to attach a draft memorandum of appeal is not fatal to an application under Rule 4 if arguability is demonstrated by other processes.
Court orders
#- 1.Applicant to file and serve a notice of appeal within fourteen (14) days of the date of the ruling
- 2.Record of appeal to be filed within sixty (60) days from the date of lodging the notice of appeal
- 3.In default of items 1 and 2, the leave granted lapses
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court
- Kitale ELC No. 73 of 2013
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
1) Applicant has fourteen (14) days of the date of this ruling to file and serve a notice of appeal.
2) The record of appeal to be filed within sixty (60) days from the date of the lodging of the notice of appeal.
In default of any of items 1 and 2 of the order, leave granted above stand lapsed.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
The upshot of the totality of the above assessment and reasoning, is that the application has merit. It is accordingly allowed on the following terms:
Issues in the judgment
#The ruling records that the application sought costs borne by the applicant, but the final orders make no express costs order, leaving the costs position unstated.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jayesh Autospares Ltd v Kapterit Rapid Co. Ltd & 2 others [2021] KECA 977 (KLR)", Case Analysis (2021). Civil Application No. 77 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/977/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.