Kenya Medical Supplies Agency v Frederichs
The bottom line
#Kenya's Court of Appeal allowed KEMSA to serve its appeal record late, ruling a bounced email was a valid excuse and that strike-out attempts need a formal motion.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of about three months in serving the Record of Appeal was inordinate
The delay was not inordinate and the explanation (a failed email delivery due to a technical server error, discovered on March 15, 2022 and remedied on March 18, 2022) was plausible.
The court accepted the computer report and certificate of electronic record showing the email was dispatched on December 6, 2021 but bounced. It found counsel had no reason to lie, since he could simply have admitted a three-month delay and argued it was not inordinate. Counsel also moved with expedition once the failure was discovered.
Scope of the single Judge's jurisdiction on a Rule 4 application
A single Judge deciding a Rule 4 application cannot entertain an application to strike out a Notice of Appeal or the appeal itself; such an application must be by properly filed motion.
The respondent sought striking out of the record of appeal through a supplementary affidavit and submissions. The court held that the correct procedure is a motion under the relevant Court of Appeal Rules, and that in any event a single Judge lacks jurisdiction to strike out a Notice of Appeal or the appeal, confining itself to the extension-of-time application.
Whether the merits of the intended appeal needed consideration
Having resolved delay and explanation in the applicant's favour, the court did not need to consider the remaining guidelines, including arguability of the appeal.
The court enumerated the settled Rule 4 principles but held that once the first two requirements (period/reason for delay) were resolved for the applicant, the other factors, including the chances of the appeal succeeding, did not fall for determination.
Legal principles established
#- An application to strike out a notice of appeal or record of appeal must be brought by a properly filed motion, not a replying affidavit or submissions, and a single Judge lacks jurisdiction to strike out a Notice of Appeal or the appeal itself.
- The Rule 4 discretion is unfettered, does not require 'sufficient reasons', and is not limited to any fixed list of factors.
- A plausible and satisfactory explanation for delay is the key that unlocks the Court's flow of discretionary power.
Court orders
#- 1.The application for extension of time/leave to serve the Record of Appeal out of time is allowed with costs in the appeal
- 2.The record of appeal already served on the respondent is deemed as duly served
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. Comm. 38 of 2013
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (single Judge, extension of time / leave to serve Record of Appeal out of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Medical Supplies Agency v Frederichs", Case Analysis (2022). Civil Appeal (Application) E703 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1020/eng@2022-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.