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Court of AppealAllowedCivil Application E505 of 2022· [2022] KECA 1164 (KLR)

Invest & Grow Sacco Ltd v Amudavi

Court of Appeal
28 October 2022
809 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 gave a Sacco more time to appeal because it never got notice of the original judgment.

What this practically means

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Executive summary

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This was an unopposed single-judge application under rule 4 of the Court of Appeal Rules by Invest & Grow Sacco Ltd seeking extension of time to lodge a notice of appeal out of time, and deeming of a notice filed on 2nd August 2022, against the judgment and decree of the High Court at Nairobi (Sergon J) in HCCC No. 408 of 2021 delivered on 17th June 2022. The applicant explained that judgment was delivered without notice to it or its counsel, who learned of it only upon being served with the decree about a month and a half later; counsel then filed the notice of intention to appeal within seven days and this application the following day. The respondent, though served with the hearing notice, filed no response. Ali-Aroni JA adopted the factors set out in Karny Zaharya & another v Shalom Levi (Koome JA): length of and reasons for delay, prejudice, conduct of parties, balancing of interests, public interest, and whether the intended appeal is arguable or frivolous, while stressing that a single judge does not definitively determine merits. Finding the delay not blameworthy, no apparent prejudice, and the intended appeal arguable, the court extended time, deemed the notice duly on record and served, and ordered costs to abide the outcome of the appeal.

Key legal issues

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01

Extension of time to file notice of appeal out of time

Holding

Where the delay is explained and not attributable to the applicant, no prejudice to the respondent is apparent, and the intended appeal is arguable, extension of time should be granted.

Reasoning

The court applied the factors in Karny Zaharya v Shalom Levi: length of and reason for delay, prejudice, conduct of parties, balancing interests, public interest, and arguability. Judgment was delivered without notice to the applicant or its counsel, who learned of it upon being served with the decree about a month and a half later; counsel then filed the notice within 7 days. The application was unopposed. The delay was thus not the applicant's fault, no prejudice was apparent, and the intended appeal was arguable and not frivolous.

p. 2

Legal principles established

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  • The discretion to extend time under rule 4 is wide but must be exercised judiciously and reasonably upon satisfactory explanation and consideration of relevant factors.

Court orders

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  1. 1.Time within which to file and lodge the notice of intention to appeal is extended
  2. 2.The notice of appeal filed on 2nd August 2022 is deemed duly on record and served
  3. 3.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (1)

  • Karny Zaharya & another vs Shalom Levi
    Civil Appl No 80 of 2018

    Factors for extension of time: length of and reasons for delay, prejudice, conduct of parties, interests of justice, public interest, arguability.

On appeal from
High Court of Kenya at Nairobi
HCCC No. 408 of 2021
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Invest & Grow Sacco Ltd v Amudavi", Case Analysis (2022). Civil Application E505 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1164/eng@2022-10-28

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