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Court of AppealAllowedCivil Application E057 of 2022· [2022] KECA 915 (KLR)

Deluxe Technologies Ltd v Kilonzo & 4 others

Court of Appeal
22 July 2022
2,043 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 company to appeal late, ruling that a genuine legal mistake by its lawyers justified the nine-month delay.

What this practically means

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Executive summary

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Deluxe Technologies Ltd purchased Donyo Sabuk/Komarock Block 1/84684 for Kshs 25 million from Isaac Mwanthi Mweu, a beneficiary and joint administrator of the estate of Joseph Mweu Nzau, after due diligence and Land Control Board consent. A beneficiary's application led the High Court (Muchelule, J.) on 22nd June 2021 to revoke the certificate of confirmation of grant, rescind transfers of the parent title, and direct reversion of the land to the deceased's name, instantly divesting the applicant. The applicant filed a notice of appeal and applied for proceedings within time, but on its former advocates' advice withdrew the notice to pursue review; new advocates advised abandoning review, which the applicant did, leaving it out of time to appeal. It applied under rule 4 of the Court of Appeal Rules for extension of time, relying on Imperial Bank, Belinda Murai and Tononoka Steels. None of the five respondents filed replies or submissions. M'inoti, JA held the nine-month delay was sufficiently explained as a genuine blunder on points of law rather than dilatoriness, the intended appeal (raising section 93 of the Law of Succession Act and other errors) was prima facie not frivolous, and the applicant faced greater prejudice. The application was allowed: the notice of appeal was to be filed and served within fourteen days, with costs of the application abiding the outcome of the intended appeal.

Key legal issues

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01

Whether conflicting legal advice from advocates excused the approximately nine-month delay

Holding

Yes - the delay was candidly and sufficiently explained as arising from a genuine blunder on points of law rather than inaction or dilatoriness, since the applicant had initially filed the notice of appeal and applied for proceedings in time.

Reasoning

The applicant had originally lodged a notice of appeal and applied for certified proceedings within the prescribed rules periods. It withdrew the notice on its former advocates' advice to pursue review, then on fresh advice abandoned review to pursue the appeal. The court, invoking Madan JA in Belinda Murai and Lakha JA in Tononoka Steels, held that a blunder on a point of law should be rectified in the interests of justice.

02

Whether the intended appeal was frivolous and the balance of prejudice favoured the applicant

Holding

The court declined to interrogate the merits, finding the appeal prima facie not frivolous; the applicant stood to lose substantial money and the property, and the unopposing respondents showed no greater prejudice.

Reasoning

The judge noted it was not his bailiwick to interrogate the merits of the intended appeal, confining himself to whether it was prima facie frivolous. The applicant risked losing the Kshs 25 million purchase price and the suit property. No respondents filed replying affidavits, grounds of objection or submissions, so the court could not find greater prejudice to them.

p. 4

Legal principles established

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  • The Court of Appeal's discretion to extend time under rule 4 is wide and unfettered but must be exercised judiciously, guided by the length of and reason for delay, prejudice, conduct of parties, and prospects of the appeal.
  • A genuine mistake, including mistaken legal advice, may justify extension of time where the interests of justice so dictate; the reason for delay is decisive on whether delay is inordinate.

Court orders

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  1. 1.Extension of time granted to lodge the notice and record of appeal out of time
  2. 2.The applicant shall file and serve the notice of appeal within fourteen days from the date of the ruling
  3. 3.Costs of the application shall abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 75(2)
  • Court of Appeal Rulesrule 82(1)
  • Law of Succession Actsection 93

Cases cited (4)

  • John Karani Mwenda v. Japhet Bundi Chabari
    [2021] eKLR

    Extension of time granted despite six years' delay caused by incorrect legal advice.

  • Imperial Bank Ltd (In Receivership) & Another v. Alnashir Popat & 18 Others
    [2018] eKLR

    Factors for extension of time: length and reason for delay, prejudice, conduct, interests of justice, and prima facie chances of success.

  • Belinda Murai & 9 Others v. Amos Wainaina
    CA. No. Nai. 9 of 1978

    Madan JA: mistakes, including blunders on points of law by experienced counsel, should be rectified in the interests of justice.

  • Tononoka Steels Ltd v. The PTA Bank
    CA No. 295 of 1998

    Lakha JA: absent fraud, overreaching or inordinate delay, the Court should prefer having cases determined on their merits.

On appeal from
High Court of Kenya at Nairobi
HC SUCC. C. No. 13 of 1996
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

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, "Deluxe Technologies Ltd v Kilonzo & 4 others", Case Analysis (2022). Civil Application E057 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/915/eng@2022-07-22

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