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Court of AppealPartially AllowedCivil Appeal (Application) E035 of 2022· [2022] KECA 694 (KLR)

Sasah General Merchants Limited v Christian Children's Fund & 2 others

Court of Appeal
22 July 2022
MNMumbi Ngugi
2,071 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed a late appeal record to be filed despite a weak excuse, but made the applicant pay costs.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Mumbi Ngugi JA) on an application dated March 8, 2022 under Rule 4 of the Court of Appeal Rules, 2010, sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution, seeking extension of time for filing the record of appeal. The underlying suit was a construction contract dispute in which the applicant claimed Kshs.15,821,912.42 from the respondents; the High Court at Kisumu (F.A. Ochieng J) dismissed the claim on May 29, 2019. The applicant filed a notice of appeal and requested proceedings in time, collected the proceedings and obtained the certificate of delay by December 6, 2021, but overlooked filing the record of appeal, which counsel attributed to a busy schedule and office closure over the Christmas holidays. The record should have been filed by February 4, 2022; the application was filed March 8, 2022, a delay of over 30 days. The 1st respondent opposed, arguing the delay was inexcusable, the appeal unarguable, and that it had severed ties with the 2nd and 3rd respondents. Applying the principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court found the delay not inordinate, declined to fully accept counsel's busy schedule as a good reason, but exercised discretion in the applicant's favour. It held that arguability and the parties' changed relationships were not matters properly considered at this stage. The application was allowed, the record of appeal deemed duly filed and served, and costs awarded to the 1st respondent.

Key legal issues

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01

Length of delay

Holding

A delay of slightly over a month in filing the record of appeal was not inordinate

Reasoning

The record of appeal should have been filed by February 4, 2022; the application was filed March 8, 2022, a delay of over 30 days. The court found this delay of slightly over one month not inordinate, weighing the applicant's timely filing of the notice of appeal and prompt collection of proceedings and certificate of delay.

p. 4
02

Reason for the delay

Holding

Counsel's oversight due to a busy schedule was not fully accepted as a good reason

Reasoning

Counsel admitted being overwhelmed with office management and other matters and overlooked filing the record. The court held that counsel with full instructions must give due attention to all matters instructed, and was not fully satisfied the busy schedule was a good reason, yet still exercised discretion in the applicant's favour.

p. 4
03

Prejudice and arguability at this stage

Holding

Arguments on the appeal's chances of success and the 1st respondent's severed ties with the 2nd and 3rd respondents were not matters for the extension-of-time stage

Reasoning

The 1st respondent argued the appeal was not arguable and that it had severed ties with the other respondents. The court held these were not matters it could properly consider on a Rule 4 application, confining itself to the Mutiso principles.

p. 4

Legal principles established

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  • Extension of time under Rule 4 is governed by the principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi: length of delay, reason for delay, prejudice to respondents, and (possibly) arguability of the appeal
  • Counsel's busy schedule or oversight is not, standing alone, a proper reason for delay where they had full instructions to act
  • Arguability of the appeal and changes in the parties' relationships are not matters properly considered at the extension-of-time stage

Court orders

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  1. 1.The application dated March 8, 2022 is allowed
  2. 2.The record of appeal filed with the application is deemed duly filed and served
  3. 3.The 1st respondent shall have the costs of the application

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 84
  • Appellate Jurisdiction Act, Cap. 9sections 3A and 3B
  • Constitution of Kenya, 2010Article 159

Cases cited (2)

  • Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited
    (2020) eKLR

    The right to be heard is a vital natural and constitutional right that will only be taken away in the clearest of cases.

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA

    Principles for extension of time: length of delay, reason for delay, prejudice to respondents, and possibly chances of appeal succeeding.

On appeal from
High Court of Kenya at Kisumu
High Court Civil Case No. 20 of 2009
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010; sections 3A and 3B of the Appellate Jurisdiction Act (Cap. 9); Article 159 of the Constitution of Kenya, 2010

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, "Sasah General Merchants Limited v Christian Children's Fund & 2 others", Case Analysis (2022). Civil Appeal (Application) E035 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/694/eng@2022-07-22

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