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Court of AppealDismissedNotice of motion dated March 17, 2023· [2023] KECA 1311 (KLR)

West Kenya Sugar Company Limited v Magona & 3 others (Civil Application E042 of 2023) [2023] KECA 1311 (KLR)

Court of Appeal
27 October 2023
1,341 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to forgive a company's six-month delay in filing an appeal because its own documents contradicted its blame of its lawyers.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Mumbi Ngugi, JA) delivered on October 27, 2023 on a notice of motion dated March 17, 2023 by Olepito Sugar Factory Limited. The applicant sought to have the firm of O&M Law LLP come on record in place of Olendo, Orare & Samba Advocates LLP, and to extend time to file and serve a notice of appeal and record of appeal against the judgment of the Environment and Land Court at Busia (Anne Omollo, J) delivered on September 27, 2022 in Busia ELC No. 43 of 2013. The respondents opposed, contending the application was an abuse of process, that a notice of appeal filed on November 9, 2022 under a mistaken belief about the judgment date remained on record, and that Rule 46 barred a subsequent notice of appeal. The court applied the settled Rule 4 criteria drawn from Leo Sila Mutiso v Rose Hellen Wangari Mwangi and Fakir Mohammed v Joseph Mugambi: length of delay, reasons for delay, chances of success and prejudice to the respondent. Taking the application as filed on March 17, 2023, the delay was five months and twenty days against the 14-day period under Rule 77(2). Perusing the applicant's own exhibits, the court found no earlier correspondence requesting the file; a letter of February 6, 2023 from the former advocates showed they had not filed a memorandum of appeal or stay application because the applicant's General Manager had not signed the supporting affidavit. The court held the delay inordinate, found the explanation blaming counsel untenable, declined to exercise its discretion, and dismissed the application with costs to the respondents.

Key legal issues

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01

Whether the delay of about six months in filing the notice of appeal was inordinate and adequately explained

Holding

The delay was inordinate and the reasons advanced, principally blaming former counsel, were unsatisfactory because the applicant's own exhibit showed the former advocates acted on the applicant's failure to sign a supporting affidavit and the file was only released on February 6, 2023

Reasoning

The court applied the established Rule 4 factors from Leo Sila Mutiso and Fakir Mohammed. It examined the correspondence annexed to the affidavit and found no earlier request for the file; the only letter, dated February 6, 2023, showed the former advocates did not file a memorandum of appeal or stay application because the applicant's General Manager did not sign the supporting affidavit. The applicant's explanation was therefore contradicted by its own documents, and the court found the delay inordinate.

p. 3
02

Whether the discretion under Rule 4 should be exercised in favour of the applicant

Holding

Discretion declined; the application was dismissed with costs

Reasoning

Having found the delay inordinate and the explanation unsatisfactory, the court was not prepared to exercise its discretion in the applicant's favour. It did not need to reach the arguability or nugatory-prong in any substantive way because the applicant failed on the delay and reasons limbs of the Rule 4 test.

p. 3

Legal principles established

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  • In an application under Rule 4 of the Court of Appeal Rules for extension of time, the court considers the length of the delay, the reasons for the delay, possibly the chances of success of the intended appeal, and the prejudice to the respondent.
  • A party who blames former counsel for delay in lodging a notice of appeal must satisfactorily account for the delay; where the party's own documents show the fault lies with the party, extension of time will be refused.

Court orders

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  1. 1.Dismissal of the application dated March 17, 2023
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 164(3)(a)
  • Appellate Jurisdiction ActSection 3(1)
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Court of Appeal Rules, 2022Rule 4
  • Court of Appeal Rules, 2022Rule 46
  • Court of Appeal Rules, 2022Rule 49(1)
  • Court of Appeal Rules, 2022Rule 77(2)
  • Court of Appeal Rules, 2022Rule 84

Cases cited (3)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Fakir Mohammed v Joseph Mugambi & 2 other
    [2005] eKLR
  • Geoffrey Oguna & another vs Mohammed Yusuf Osman & 2 others
    (2022) eKLR
On appeal from
Environment and Land Court at Busia
Busia ELC No. 43 of 2013
Jurisdiction invoked
Articles 48, 50(1) and 164(3)(a) of the Constitution; sections 3(1), 3A and 3B of the Appellate Jurisdiction Act; Rules 4, 49(1), 77 and 84 of the Court of Appeal Rules, 2022

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, "West Kenya Sugar Company Limited v Magona & 3 others (Civil Application E042 of 2023) [2023] KECA 1311 (KLR)", Case Analysis (2023). Notice of motion dated March 17, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1311/eng@2023-10-27

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