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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal (Application) E703 of 2021· [2022] KECA 1020 (KLR)

Kenya Medical Supplies Agency v Frederichs

Court of Appeal
23 September 2022
1,521 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling by a single Judge of the Court of Appeal (W Karanja, JA) on an application under Rule 4 of the Court of Appeal Rules by the Kenya Medical Supplies Agency seeking leave to serve a Record of Appeal out of time, and an order deeming the record served on March 18, 2022 as duly served, in an intended appeal against the High Court judgment of F. Tuiyott, J. delivered on July 5, 2019 in HCCC No. Comm. 38 of 2013. The applicant explained that the record was emailed to the respondent on December 6, 2021 but the email bounced due to a technical server error, discovered only on March 15, 2022, whereupon a hard copy was served on March 18, 2022. The respondent disputed the authenticity of the 'mailer-demon' email through a technical report and urged the court to strike out the record of appeal. The court held that a striking-out application cannot be brought by replying affidavit or submissions and that a single Judge lacks jurisdiction to strike out a Notice of Appeal or the appeal. Applying the settled Rule 4 principles (Leo Sila Mutiso, Fakir Mohamed, Muringa Company), the court found the roughly three-month delay not inordinate and the explanation plausible, accepted counsel's credibility, and allowed the application with costs in the appeal, deeming the record already served as duly served.

Key legal issues

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01

Whether the delay of about three months in serving the Record of Appeal was inordinate

Holding

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.

Reasoning

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.

02

Scope of the single Judge's jurisdiction on a Rule 4 application

Holding

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.

Reasoning

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.

p. 2
03

Whether the merits of the intended appeal needed consideration

Holding

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.

Reasoning

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

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  • 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

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  1. 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. 2.The record of appeal already served on the respondent is deemed as duly served

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (4)

  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
    [1999] 2 EA 231

    Settled principles governing extension of time under Rule 4

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

    Rule 4 extension of time principles

  • Muringa Company Ltd vs. Archdiocese of Nairobi Registered Trustees
    [2020] eKLR

    Rule 4 extension of time principles

  • Githere vs. Ndiriri

    Discretion must be exercised judicially, on sound reasoning and not on whim or caprice

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

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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, "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.