Alpine Coolers Limited v Miheso (Miscellaneous Application E097 of 2023) [2023] KEELRC 2912 (KLR)
The bottom line
#A Kenyan court allowed a late appeal because the lawyer filed it in the wrong court, ruling that a client shouldn't pay for that mistake.
What this practically means
#Executive summary
#Key legal issues
#Whether leave should be granted to file an appeal out of time against the judgment in Nairobi CMCC No. 845 of 2012
Leave granted; the delay was reasonably and satisfactorily explained by the filing of an appeal in the wrong forum (the High Court), which was struck out for want of jurisdiction, and no grave prejudice would befall the Respondent.
The Court applied the Nicholas Salat principles. The judgment sought to be challenged was over six years old, but the Applicant had pursued an appeal in the High Court which was struck out for want of jurisdiction rather than heard on merit. Counsel's failure to identify the proper forum was noted with concern, but the Court declined to punish the litigant for counsel's mistake. The decretal sum lay in a joint interest-earning account, so no grave prejudice would ensue, and the application filed about two months after the High Court judgment was not inordinate delay.
Whether an application for extension of time is defective because no appeal had been filed when it was made
The Respondent's objection was rejected; the Court held the argument wholly erroneous, applying the Supreme Court's guidance that a draft intended appeal should be annexed to the extension application rather than an appeal filed out of time.
The Respondent contended that the Court cannot extend time on a non-existent appeal. The Court found no anchor in law for that submission and, fortified by the Supreme Court's holding in Nicholas Salat that filing an appeal out of time before seeking extension is irregular and such a document is a nullity, held the Respondent's argument to be wholly erroneous.
Whether the application was filed with undue delay
No inordinate delay; the application was filed about two months after the High Court judgment, and within weeks of the Applicant learning of it.
The High Court judgment was delivered on 9th March 2023 and the application filed on 4th May 2023. The Applicant's Counsel only received notification of the decision on 11th April 2023, a fact not disputed by the Respondent, so the intervening period could not be characterised as inordinate delay.
Legal principles established
#- An extension of time may be granted where the delay is explained, no grave prejudice is suffered by the respondent, and the application is brought without undue delay; counsel's mistake in filing an appeal in the wrong forum should not be visited on the litigant.
- The argument that an extension of time cannot precede the filing of an appeal is erroneous; the correct position per Nicholas Salat is that the applicant should annex a draft intended appeal to the extension application rather than file an appeal first.
Court orders
#- 1.Leave granted to the Applicant to file its appeal out of time arising out of the judgment in NRB CMCC No. 845 of 2012 delivered on 6th March 2017
- 2.Applicant directed to file its Memorandum of Appeal within thirty days of the date of the Ruling
- 3.Applicant directed to pay the Respondent thrown away costs of Kshs. 20,000/- for the application
- On appeal from
- High Court of Kenya at Nairobi
- Civil Appeal No. 152 of 2017
- Jurisdiction invoked
- Sections 79G, 1A, 1B and 3A of the Civil Procedure Act; Order 50 Rule 6 and Order 51 Rules 1, 3 and 4 of the Civil Procedure Rules 2010; Article 159(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alpine Coolers Limited v Miheso (Miscellaneous Application E097 of 2023) [2023] KEELRC 2912 (KLR)", Case Analysis (2023). Notice of Motion dated 4th May 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2912/eng@2023-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.