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Court of AppealAllowedCivil Application E063 of 2022· [2022] KECA 1265 (KLR)

Sea Angel Service Station Limited v Abdul

Court of Appeal
18 November 2022
PNP. Nyamweya
1,292 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a fuel station a second chance to file its appeal on time, showing courts will forgive procedural slips when justice demands it.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Mombasa (P. Nyamweya JA) on a Notice of Motion dated September 30, 2022 brought under Rule 4 of the Court of Appeal Rules, 2010. The applicant, Sea Angel Service Station Limited, sought leave to serve its letter requesting certified copies of the judgment and proceedings out of time, and to file and serve a new Record of Appeal out of time, in an intended appeal against the High Court (P.J. Otieno J.) ruling of May 3, 2017 in Mombasa H.C Civil Appeal No 108 of 2013, which had found its suit statutorily barred. The application followed the striking out of the applicant's earlier Record of Appeal by the Court on September 23, 2022 (A.K. Murgor, P. Nyamweya & J. Lesiit JJ.A) for failure to serve the request for proceedings on the respondent within thirty days as required by Rule 82(2) of the 2010 Rules, which vitiated the certificate of delay. The respondent did not contest the application. The judge restated the Rule 4 principles from Leo Sila Mutiso and the Supreme Court's Salat decision, and held that although the applicant gave no explanation for the failure of service, the steps taken in time, the late issuance of proceedings, and the prejudice to the applicant as an unpaid seller justified extension. The application was allowed with no order as to costs; the applicant was directed to serve the letter within fourteen days and granted thirty days to file and serve a new Record of Appeal.

Key legal issues

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01

Exercise of discretion to extend time under Rule 4 despite non-service of the request for proceedings

Holding

Extension of time granted because the applicant filed a Notice of Appeal within time and requested proceedings, and would suffer prejudice if the appeal could not be canvassed, even though no explanation was given for the failure to serve the request.

Reasoning

The court applied the Leo Sila Mutiso and Salat factors: length of delay, reason for delay, chances of success and prejudice. The delay was explained by late issuance of typed proceedings. Although the applicant gave no explanation for failing to serve the request for proceedings within thirty days, the court weighed the steps taken in time, the averred prejudice as an unpaid seller, and the overriding interest of justice in allowing the appeal to be heard on its merits.

p. 2

Legal principles established

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  • The discretion to extend time under Rule 4 is unfettered but must be exercised judiciously, guided by the length of and reason for delay, chances of success, and prejudice to the respondent.
  • Failure to serve the request for proceedings on the respondent within the timelines under Rule 82(2) vitiates the certificate of delay and renders the record of appeal filed out of time.

Court orders

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  1. 1.The Applicant's Notice of Motion dated September 30, 2022 for extension of time is allowed
  2. 2.The Applicant shall serve the respondent with the letter dated May 3, 2017 requesting a certified copy of the judgment and proceedings within fourteen days
  3. 3.The Applicant is granted leave to file and serve a new Record of Appeal within thirty days
  4. 4.No order as to the costs of the application

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal Rules, 2010Rule 82(2)
  • Court of Appeal Rules, 2010Rule 82
  • Court of Appeal Rules, 2022Rule 84

Cases cited (3)

  • Thuita Mwangi vs Kenya Airways Ltd
    [2003] eKLR

    Principles on exercise of the court's discretion to extend time

  • Nicholas Kiptoo Arap Korir Salat v IEBC and 7 others
    [2014] eKLR

    Factors for extension of time, including whether justice can nevertheless be done

  • Leo Sila Mutiso vs Rose Hellen Wangare Mwangi
    Civil Application No Nai 255 of 1997 (ur)

    Factors governing extension of time: length and reason of delay, chances of success, prejudice to respondent

On appeal from
High Court of Kenya at Mombasa
Mombasa H.C Civil Appeal No 108 of 2013
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sea Angel Service Station Limited v Abdul", Case Analysis (2022). Civil Application E063 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1265/eng@2022-11-18

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