Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application 68 of 2021· [2022] KECA 772 (KLR)

Ready Consultancy Ltd & 2 others v First Community Bank & another

Court of Appeal
10 June 2022
SKS. Gatembu Kairu
1,048 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to extend time to appeal because the applicants delayed unreasonably and never explained why.

What this practically means

#

Executive summary

#
This is a single-judge ruling of the Court of Appeal at Mombasa (SG Kairu, JA) on a composite application dated 6 September 2021 by Ready Consultancy Ltd, Mohammed Issa Ducale and Mohamed Hassan Ali. The applicants sought extension of time to file a notice of appeal out of time against a High Court at Garissa judgment (Ali Aroni, J, 10 June 2021) holding them liable to First Community Bank for a working capital loan extended to the first applicant and secured by guarantees and indemnity of the second and third applicants. They also sought stay of execution of that judgment, but the single judge declined to consider that prayer, holding it could only be dealt with by the full Court. On the extension of time application, the judge applied the settled Rule 4 principles from Fakir Mohamed and the Supreme Court's decision in Salat: extension of time is an equitable remedy, not a right, and the applicant bears the burden of laying a basis for it. Although the applicants deposed that notice of delivery of judgment was not given and that they instructed counsel to appeal by 16 July 2021, the application was only dated 6 September 2021 and lodged on 27 September 2021, with no explanation for that delay. The judge also noted that the applicants had not appeared at the hearing of the suit before the High Court and had not indicated their intended grounds of appeal. Finding no material on which to exercise the discretion in their favour, the judge dismissed the extension of time application with costs to the first respondent. The stay of execution prayer remains unaddressed and may proceed before the full Court.

Key legal issues

#
01

Whether extension of time to file a notice of appeal out of time should be granted

Holding

The application was dismissed because the delay in lodging the application was inordinate and unexplained, the applicants did not appear at the hearing of the suit below, and no grounds of appeal were indicated.

Reasoning

The court applied the settled Rule 4 principles from Mutiso, Fakir Mohamed and Salat. The judgment was delivered on 10 June 2021; the applicants became aware on 28 June 2021, but the application was only dated 6 September 2021 and lodged on 27 September 2021, with no explanation for that delay. The applicants also failed to appear at the trial hearing and did not indicate intended grounds of appeal, leaving no material on which discretion could be exercised in their favour.

p. 2

Legal principles established

#
  • Extension of time under Rule 4 is an equitable remedy, not a right, granted at the court's discretion to a deserving party who must lay a basis for it
  • The Rule 4 discretion considers relevant but non-exhaustive factors including delay, reasons for delay, chances of appeal success, and prejudice to the respondent

Court orders

#
  1. 1.The application for extension of time is dismissed with costs to the 1st respondent

Authorities

#

Legislation

  • Court of Appeal RulesRule 4

Cases cited (6)

  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. Nai 255 of 1997 (1999) 2 EA 23

    Established principles for extension of time under Rule 4

  • Fakir Mohamed vs. Joseph Mugambi & 2 others
    [2005] eKLR

    Waki, JA's summary of Rule 4 factors: delay, reasons, chances of success, prejudice

  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others
    Supreme Court Application No. 16 of 2014 [2014] eKLR

    Extension of time is an equitable remedy; burden on applicant to explain delay and show no prejudice

  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR 486

    Relevant factor in Rule 4 discretion (cited within Fakir Mohamed quote)

  • Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General
    Civil Appl. NAI. 8/2000 (UR)

    Relevant factor in Rule 4 discretion (cited within Fakir Mohamed quote)

  • Murai v Wainaina (No 4)
    [1982] KLR 38

    Relevant factor in Rule 4 discretion (cited within Fakir Mohamed quote)

On appeal from
High Court of Kenya at Garissa
High Court Civil Case No. 4 of 2019
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single judge jurisdiction for extension of time)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ready Consultancy Ltd & 2 others v First Community Bank & another", Case Analysis (2022). Civil Application 68 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/772/eng@2022-06-10

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