Kuhiara v Industrial and Commercial Development Corporation & 2 others
The bottom line
#The Court of Appeal refused to excuse a two-month delay in filing an appeal because the applicant showed no good reason and no arguable appeal.
What this practically means
#Executive summary
#Key legal issues
#Merit of the intended appeal
The applicant failed to demonstrate an arguable appeal; no draft memorandum of appeal was annexed
The court noted that the applicant did not contend she had an arguable appeal against the trial court's ruling, and no draft memorandum of appeal was annexed to enable the court assess arguability. Without this threshold factor, the first and most important principle under Wasike v Swala was not satisfied.
Explanation for the delay
The delay of about two months was inordinate and inexcusable
The notice of appeal was filed well beyond the 14 days allowed by Rule 75. The applicant offered no specific reason, merely invoking the advocate's mistake without stating what the advocate failed to do, and produced no documentary evidence of illness preventing her from instructing counsel.
Prejudice to the parties
The respondents, not the applicant, would suffer prejudice if the extension were granted
The applicant had partly complied with the conditional stay order by paying about Kshs.210,000 into a joint account of both parties' advocates. Since the money was not paid directly to the respondents, the applicant would suffer no prejudice, whereas the respondents would be denied the fruits of their judgment.
Legal principles established
#- An applicant for extension of time under Rule 4 must show, in descending order, merit in the appeal, absence of undue prejudice to the respondent, and that the delay is not inordinate
- Filing a notice of appeal is routine and mechanical; unexplained delay of even a few months is inordinate and inexcusable
Court orders
#- 1.The notice of motion dated 23rd March 2022 is dismissed with no order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 326 of 2008
- Jurisdiction invoked
- Section 3(1) & (2), 3B of the Appellate Jurisdiction Act and Rules 4 and 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kuhiara v Industrial and Commercial Development Corporation & 2 others", Case Analysis (2022). Civil Application E098 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/663/eng@2022-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.