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Court of AppealAllowedCivil Appeal (Application) E309 of 2022· [2022] KECA 1346 (KLR)

Law Society of Kenya v National Assembly & 4 others

Court of Appeal
2 December 2022
GNG.W. Ngenye-Macharia
1,400 words in judgment
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The bottom line

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Kenya's Court of Appeal let the Law Society of Kenya appeal late, ruling a short, explained delay should not block access to justice.

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 Nairobi on a Notice of Motion dated 26th August 2022 by the Law Society of Kenya, seeking extension of time to file a Notice and Memorandum of Appeal out of time against the High Court judgment of H. Ong'udi, J. dated 21st July 2022 in Constitutional Petition No. 215 of 2020, which dismissed the Society's petition challenging Section 29(8) of the Competition Act. The applicant explained that a copy of the judgment forwarded by its advocates was misplaced at its offices and never reached its Secretary/CEO, and that it only learnt of the judgment from a Business Daily article on 19th August 2022, whereupon it instructed advocates and filed a Notice of Appeal on 23rd August 2022. The respondents filed no response. Applying Rule 4 of the Court of Appeal Rules and the principles in Leo Sila Mutiso v Helen Wangari Mwangi, the court found the explanation reasonable, the delay not inordinate, and the draft memorandum of appeal arguable, raising weighty issues of public interest on the constitutionality of sections of the Competition Act. The application was allowed: the Notice of Appeal was deemed duly filed within time, to be served within seven days; the Record of Appeal was to be filed within 45 days; and costs of the Motion were to be in the appeal. The decision below was not disturbed; the ruling concerns only access to the appellate process.

Key legal issues

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01

Whether the delay of 14 days in filing the Notice of Appeal was adequately explained and whether extension of time should be granted

Holding

The explanation was reasonable and the delay was not inordinate; the application was merited and allowed.

Reasoning

Applying Rule 4 and the Mutiso principles, the court found the 14-day delay beyond the Rule 77(2) period was explained by the misplacement of the judgment letter at the applicant's offices, so the Secretary/CEO never received it. The delay was reasonable and not inordinate, the draft memorandum showed arguable issues on the constitutionality of sections of the Competition Act, and no prejudice was shown.

p. 3
02

Whether the intended appeal was arguable

Holding

The intended appeal challenging the enactment and constitutionalism of sections of the Competition Act was arguable and not spurious.

Reasoning

A glance at the Draft Memorandum of Appeal showed the appeal raised weighty issues of public interest concerning the constitutionality of sections of the Competition Act, which the court could not wish away.

Legal principles established

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  • The Court may extend time limited by the Rules on such terms as it thinks just, applying the Mutiso principles of length of delay, reason, arguability and prejudice.

Court orders

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  1. 1.The Notice of Appeal dated 22nd August 2022 is deemed as duly filed within the prescribed time and shall be served within seven days of the ruling
  2. 2.The Record of Appeal shall be filed within 45 days of the Ruling
  3. 3.Costs of the Motion shall be in the appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 77(2)
  • Competition ActSection 29(8)

Cases cited (3)

  • County Government of Mombasa v Kooba Kenya Limited
    [2019] eKLR

    Extension of time principles (cited by applicant in submissions)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR

    Extension of time principles (cited by applicant in submissions)

  • Leo Sila Mutiso v Helen Wangari Mwangi
    [1999] 2 EA p231

    Principles for exercise of discretion under Rule 4: length of delay, reason, chances of appeal succeeding, prejudice to respondent

On appeal from
High Court
H.C. Constitutional Petition No. 215 of 2020
Jurisdiction invoked
Section 3A of the Appellate Jurisdiction Act, Chapter 9 Laws of Kenya and Rules 4 and 42 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, "Law Society of Kenya v National Assembly & 4 others", Case Analysis (2022). Civil Appeal (Application) E309 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1346/eng@2022-12-02

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