Joreth Limited v Frashya Njeri Mbugua & 3 others
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal because the applicant couldn't explain part of a nine-month delay and showed no draft appeal grounds.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant accounted for the whole period of delay
The applicant failed to explain the delay from 9th March, 2021 (when served with the respondents' application for review of the very judgment) to the filing of the application on 24th June, 2021, demonstrating lack of seriousness
The respondents' assertion that their advocate knew of the judgment date and was served with a review application on 9th March, 2021 was unrebuted. The court accepted the respondents' version, holding that the three months and fifteen days of unexplained delay showed lack of seriousness in pursuing the intended appeal.
Whether the intended appeal was arguable
The applicant traced no draft memorandum of appeal or grounds of appeal on the record, undermining arguability even though the threshold is a mere possibility
Although arguability requires only a possibility, the court found no draft memorandum of appeal and no grounds set out in the application or supporting affidavit. This further evidenced the applicant's lack of seriousness and weighed against the exercise of discretion under Rule 4 of the Court of Appeal Rules.
Whether the right to be heard entitled the applicant to extension of time as of course
No; the constitutional right to be heard does not translate into an automatic right to extension of time; seriousness of pursuit must be demonstrated
Relying on Leiyagu, Mbaki and Abbas Sherally on the sanctity of the right to be heard, the court held that nothing in that jurisprudence suggests the right to be heard on appeal is granted as a matter of course. The applicant's demonstrated lack of seriousness disentitled it to the discretionary relief sought.
Legal principles established
#- Extension of time is not a right but an equitable remedy available to a deserving party at the discretion of the court, and the factors are considered conjunctively
- The right to be heard on appeal must be pursued with demonstrated seriousness; it is not accorded as a matter of course
Court orders
#- 1.The notice of motion dated 4th June, 2021 is dismissed
- 2.Costs of the application awarded to the 1st and 2nd respondents
- On appeal from
- Environment and Land Court, Nairobi
- ELC Case No. 367 of 2012
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9, and Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joreth Limited v Frashya Njeri Mbugua & 3 others", Case Analysis (2022). Civil Application No. Nai. 000 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/163/eng@2022-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.