Madara & 2 others v Chite & another (Civil Application E057 of 2024) [2024] KECA 1805 (KLR)
The bottom line
#Kenya's Court of Appeal allowed late filing of an appeal, ruling that a lawyer's mistake should not punish the client when the delay is honestly explained.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have proffered satisfactory reasons to warrant the exercise of the single judge's discretionary jurisdiction to extend time under rule 4 of the Court of Appeal Rules, 2022
- 2.Whether the applicants satisfactorily explained the delay in filing the Notice of Appeal
- 3.Whether the respondents would suffer prejudice if leave to appeal out of time is granted
Key legal issues
#Factors for extension of time under rule 4
The court applies the non-exhaustive factors in Imperial Bank Ltd (In Receivership) v Alnashir Popat: length of delay, reasons for delay, prejudice, conduct of parties, balancing interests, public interest, and prima facie chances of success of the intended appeal.
The single judge adopted the Imperial Bank catalogue as the governing framework, stressing it is not closed because discretion depends on the circumstances of each case. He then applied the framework to the two questions framed: satisfactory explanation of the delay and absence of prejudice to the respondent.
Explanation for the delay of approximately 6 months
Delay up to 23rd February 2024 was excusable because judgment was delivered without notice to the applicants; the period thereafter was attributable to counsel's erroneous withdrawal of an application made in the wrong forum, a bona fide mistake that should not be visited on the client.
The applicants learned of the judgment only when served with a proclamation notice. They then moved the High Court for leave, mistakenly believing that court had no jurisdiction to extend time for a Notice of Appeal to the Court of Appeal. The court held the mistaken withdrawal was counsel's error, and that the applicants had actively pursued their right of appeal rather than gone to slumber.
Prejudice to the respondent
The only prejudice identified was loss of the opportunity to execute the decree, which is not a bar since institution of an appeal does not stay execution under rule 5(2).
The court found that the 1st respondent's sole claimed prejudice was being denied the fruits of his judgment. The judge pointed the respondent to rule 5(2) of the Court of Appeal Rules, which preserves the right to execute notwithstanding the filing of an appeal, and thus found no substantial prejudice.
Legal principles established
#- An application to enlarge time to file a Notice of Appeal in an intended appeal to the Court of Appeal may be made to, and determined by, the High Court under section 7 of the Appellate Jurisdiction Act.
- The whole period of delay in an extension-of-time application must be declared and sufficiently explained, and a bona fide mistake of counsel should not be visited upon the client.
- Institution of an appeal does not stay execution of the decree.
Court orders
#- 1.The notice of motion dated 28th May 2024 is allowed
- 2.The applicants' draft Notice of Appeal is deemed duly filed upon payment of the requisite court fees within 7 days from the date of delivery of the ruling
- 3.Time for all other activities consequent to the filing of a Notice of Appeal shall run as per the rules of this Court
- 4.Costs of the application shall abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa High Court Civil Appeal No. 111 of 2022
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules, 2022
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the erroneous withdrawal of the application before the High Court was the mistake of counsel and there is no reason why that mistake should be visited upon the applicants.
the whole period of delay should be declared and suficiently explained.
The applicants did not go to slumber but were knocking every door to gain access into the appellate space which access had been shut due to the lapse of time.
The applicants’ draft Notice of Appeal shall be deemed to have been duly filed upon the payment of the requisite court fees within 7 days from the date of delivery of this ruling.
Issues in the judgment
#The judgment states the application was heard on 21st November 2023, yet the application is dated 28th May 2024 and submissions were dated July 2024; the hearing date appears to be an error for 2024.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Madara & 2 others v Chite & another (Civil Application E057 of 2024) [2024] KECA 1805 (KLR)", Case Analysis (2024). Notice of motion dated 28th May 2024 (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1805/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.