Owners of Motor Vessel "Ioannis G" & another v Pembe Flour Mills Limited & another
The bottom line
#Kenya's Court of Appeal struck out Pembe Flour Mills' appeal because an unexplained eight-month delay in filing the appeal record forfeited their right to challenge the ruling.
What this practically means
#Executive summary
#Key legal issues
#Whether extension of time should be granted for filing the Record of Appeal
Refused; the delay of over eight months after the certified exclusion period was unexplained, inordinate and prejudicial.
The Certificate of Delay excluded time up to December 3, 2020, so the record was due by February 3, 2021. It was lodged October 25, 2021 with no explanation for the intervening period. Applying the Mutiso principles and considering earlier delay and prejudice to the Respondent from security costs, the court declined to exercise its discretion under Rule 4.
Whether the Notice of Appeal should be deemed withdrawn under Rule 83
Deemed withdrawn; with no competent appeal on record, the circumstances for deeming withdrawal under Rule 83 exist.
Although the Respondent's strike-out application was itself out of time under the Rule 84 proviso, the court retained discretion to deem the notice withdrawn. Citing Mae Properties, the court held that where no competent appeal exists because extension of time was refused, the notice of appeal dies and the court may formally order it deemed withdrawn.
Whether the application to strike out the Record of Appeal was competently filed
Struck out as incompetent, having been lodged outside the thirty-day timeline.
The Record of Appeal was served on November 15, 2021 and the strike-out application was lodged on December 20, 2021, beyond the thirty days required by the proviso to Rule 84. It was therefore incompetently filed and struck out, with no order as to costs given the outcome of the other applications.
Legal principles established
#- The four settled principles for extension of time under Rule 4 are length of delay, reason for delay, chances of appeal succeeding, and prejudice to the Respondent.
- Extension of time is an equitable remedy, not a right, and the applicant bears the burden of justifying it.
- A notice of appeal dies after 60 days unless the appeal is lodged within that time or time is extended; the court may then deem it withdrawn on its own motion.
- An application to strike out a notice of appeal under the proviso to Rule 84 must be brought within thirty days of service of the notice of appeal.
Court orders
#- 1.The Appellant's application dated November 15, 2021 in Civil Appeal (Application) No E101 of 2021 is not merited; the Record of Appeal dated September 30, 2021 and filed October 25, 2021 is struck out with costs to the Respondent
- 2.The Respondent's application dated April 26, 2019 in Civil Application No 34 of 2019 is merited; the Notice of Appeal dated July 27, 2017 is deemed as withdrawn, with costs to the Respondent
- 3.The Respondent's application dated December 10, 2021 in Civil Application No E096 of 2021 is struck out as incompetently filed, with no order as to costs
- 4.This ruling applies to the applications in Civil Application No 34 of 2019 and E096 of 2021, with copies placed in the record of those applications
- On appeal from
- High Court at Mombasa
- Mombasa Admiralty Claim 2 of 2016
- Jurisdiction invoked
- Rules 4, 75, 77(1), 82, 83 and 84 of the Court of Appeal Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owners of Motor Vessel "Ioannis G" & another v Pembe Flour Mills Limited & another", Case Analysis (2022). Civil Application 34 of 2019 & E096 of 2021 & Civil Appeal (Application) E101 of 2021 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1206/eng@2022-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.