PJ Dave Flora Limited v Wanjala (Civil Appeal 57 of 2018) [2023] KEELRC 1805 (KLR)
The bottom line
#A Kenyan court allowed a late appeal and stopped execution of the judgment, provided the applicant deposits the full decretal amount in a joint interest-earning account within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the intended appeal was explained and excusable
The court found the delay adequately explained: counsel learned of the judgment belatedly because it was taken in counsel's absence, and time ran out before instructions to appeal were received.
The court applied the First American Bank principles, which require an explanation for the delay, arguability of the intended appeal, and compensability of any prejudice to the respondent in costs. The Applicant's affidavit explained that judgment was delivered in counsel's absence without notice, counsel learnt of it on August 23, 2018, and instructions to appeal came on October 25, 2018, by which time the period for appealing had expired. On that basis the delay was not inordinate or inexcusable.
Whether the intended appeal was arguable and whether the Respondent's prejudice could be compensated
The appeal appeared arguable and any prejudice to the Respondent was amenable to compensation by costs, reinforced by the Applicant's undertaking to deposit the decretal sum in a joint interest earning account.
Relying on the Second American Bank principles as restated, the court weighed the merits of the contemplated appeal and prejudice to the Respondent. The Applicant's offer to deposit the entire decretal sum either in court or in a joint interest earning account in the names of the parties' Advocates secured the Respondent's position. The court concluded the appeal appeared arguable and that costs could compensate any prejudice, justifying exercise of discretion in the Applicant's favour.
Legal principles established
#- Granting leave to file an appeal out of time is a matter of judicial discretion, examined case by case under the principles in First American Bank of Kenya Ltd v Gulab P Shah & 2 others: explanation for delay, arguability of the intended appeal, and compensability of the respondent's prejudice in costs.
Court orders
#- 1.Leave granted for enlargement of time for filing the intended appeal
- 2.Stay of execution of the judgment of the trial court granted, subject to the Applicant depositing the entire decretal sum in a joint interest earning account in the names of the parties' Advocates within thirty (30) days
- 3.Applicant directed to file and serve the Record of Appeal within sixty (60) days
- 4.Costs of the application to follow the outcome of the appeal
- On appeal from
- Kajiado Chief Magistrate's Court
- CMCC No 512 of 2016
- Jurisdiction invoked
- Inherent discretion to enlarge time for filing an appeal and to grant stay of execution pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PJ Dave Flora Limited v Wanjala (Civil Appeal 57 of 2018) [2023] KEELRC 1805 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1805/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.