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Court of AppealAllowedApplication dated 18th August 2023· [2024] KECA 243 (KLR)

Humming Healthcare Limited v Asterisk Limited (Civil Appeal (Application) E636 of 2023) [2024] KECA 243 (KLR)

Court of Appeal
8 March 2024
1,693 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal allowed Humming Healthcare's late appeal to proceed, but warned that a High Court extension for a notice of appeal does not cover the separate deadline for requesting court proceedings.

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 by S. Gatembu Kairu, JA, on an unopposed application dated 18th August 2023 by Humming Healthcare Limited seeking extension of time to file its record of appeal, and that the record filed out of time be deemed duly filed and served. The underlying dispute arises from a High Court judgment of 14th September 2015 in favour of Asterik Limited, and a ruling of 1st July 2021 lifting the corporate veil and permitting execution against the applicant's directors. The High Court granted leave to file a notice of appeal out of time on 28th July 2022, which was filed on 11th August 2022. Under Rule 84 of the Court of Appeal Rules the applicant then had sixty days to lodge the memorandum and record of appeal, but it was only lodged on or about 14th August 2023 - a delay of roughly ten months. The court held that the High Court's extension of time for the notice of appeal did not extend the 30-day period for requesting typed proceedings under Rule 84, that the applicant ought to have sought a separate extension, and that the delay was therefore not satisfactorily explained. Noting the absence of opposition, and applying the Salat and Fakir Mohamed principles, the judge reluctantly allowed the application, deemed the record of appeal as filed and served, and made no orders as to costs.

Key legal issues

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01

Whether the ~10-month delay in lodging the memorandum and record of appeal was satisfactorily explained

Holding

The court found the explanation inadequate: the former advocates failed to apply for typed proceedings within the 30-day period under Rule 84, and no extension of that period was ever sought; the delay was not satisfactorily explained.

Reasoning

The 30-day period for requesting proceedings began running on 28th July 2022. The request was made only on 11th January 2023. The applicant wrongly assumed that the High Court's extension of time to file the notice of appeal also extended the Rule 84 period; it did not. The letters requesting proceedings bore no court stamp, no evidence of delivery, and none were copied to the respondent's advocates. However, because the application was unopposed, the court reluctantly allowed it.

p. 3
02

The principles governing extension of time under Rule 4

Holding

The discretion under Rule 4 is unfettered but must be exercised judicially, applying the Salat factors: explanation of delay, prejudice, undue delay in bringing the application, and public interest.

Reasoning

Relying on the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat v IEBC and the Court of Appeal's decision in Fakir Mohamed v Joseph Mugambi, the court restated that extension of time is an equitable remedy decided case-by-case, that the applicant bears the burden of laying a basis, and that delay must be explained to the satisfaction of the court.

p. 2

Legal principles established

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  • Extension of time is not a right but an equitable remedy; the applicant bears the burden of satisfying the court, and the delay must be explained to the court's satisfaction, considering prejudice, undue delay and public interest.
  • An extension of time granted by the High Court for filing a notice of appeal does not extend the 30-day period under Rule 84 of the Court of Appeal Rules for applying for a copy of the proceedings; a separate extension must be sought.

Court orders

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  1. 1.The application dated 18th August 2023 is allowed
  2. 2.The record of appeal filed herein is deemed as having been filed and served
  3. 3.No orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 84

Cases cited (2)

  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others
    Supreme Court Application No. 16 of 2014 [2014] eKLR
  • Fakir Mohamed vs. Joseph Mugambi & 2 others
    [2005] eKLR
On appeal from
High Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "Humming Healthcare Limited v Asterisk Limited (Civil Appeal (Application) E636 of 2023) [2024] KECA 243 (KLR)", Case Analysis (2024). Application dated 18th August 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/243/eng@2024-03-08

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