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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No NAI 51 of 1987

Kenya Film Corporation v Muthike [1987] KECA 13 (KLR)

Court of Appeal of Kenya
30 July 1987
1,696 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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Kenya's Court of Appeal gave Kenya Film Corporation more time to appeal because its delay was short, explained, and the appeal raised a genuinely arguable issue.

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 (Platt JA) on an amended application under rule 4 of the Court of Appeal Rules for extension of time. The background was a suit by Charles Kabanga Muthike against Kenya Film Corporation in which Patel J, on September 12, 1986, struck out the company's defence and entered judgment on liability with damages to be assessed. The assessment process proved turbulent: Cockar J first found no damages were due, then on review vacated that judgment; Mr Commissioner Sampson later assessed damages at Kshs 71,312, and a review seeking to alter that figure failed, confirming the assessment on June 3, 1987. The company had filed a notice of appeal on liability within time but failed to serve it or copy its request for proceedings to the plaintiff. By the amended application it sought leave to serve that notice out of time, to lodge a notice of appeal against the damages assessment, and to lodge the record of appeal out of time. Platt JA held that where a full appeal is intended, the earlier procedural lapses caused no prejudice, and that the practical date for the company to act was June 3, 1987, making the 9-day delay short. The judge also found a substantial issue: whether the parties were bound by the labour officer's finding of unlawful termination, and whether all issues could be re-opened at trial, was not free from doubt. Applying the principles in Gatti v Shoosmith, the application was granted with tailored filing timelines; costs of the amended application were made costs in the cause, and costs of the first application were borne by the applicant per the earlier order of July 1, 1987.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether leave should be granted to serve the notice of appeal dated September 24, 1986 out of time
  2. 2.Whether leave should be granted to lodge a notice of appeal against the assessment of damages dated March 24, 1987 out of time
  3. 3.Whether leave should be granted to lodge the record of appeal out of time
  4. 4.Whether the intended appeal raised a substantial issue warranting extension of time, including whether the parties were bound by the labour officer's findings

Key legal issues

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01

Whether time for service of the notice of appeal and lodging the record should be extended

Holding

Extension granted, the 9-day practical delay since June 17, 1987 being short and adequately explained, and a substantial issue existing on the appeal

Reasoning

The court surveyed the procedural history: the first assessment refusing damages was set aside on review, and the second assessment of Kshs 71,312 was confirmed only on June 3, 1987. The defendant awaited the outcome of the plaintiff's review, making June 3, 1987 the practical date to act. The 9-day delay was short, and the confusion caused by the fluctuating assessments was good reason. Applying the principles in Gatti v Shoosmith, and there being a substantial issue, extension was warranted.

p. 3
02

Whether the intended appeal raised an arguable issue

Holding

Yes - whether the parties were bound by the labour officer's investigation and whether all issues could be re-opened at trial was not free from doubt

Reasoning

The parties had submitted the termination dispute to a labour officer, Mr Wanjohi, but the record did not show in what capacity he acted - whether as arbitrator with a binding award, or merely as investigator. Patel J held the parties bound, but the basis was unclear, and the officer's award of reinstatement left open what else was awarded. The defendant's accession to reinstatement was arguably not an admission of fault or liability. Which side was right could not be assessed on the materials before the court.

p. 3

Legal principles established

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  • A defendant whose defence is struck out may either appeal against the interlocutory decision on liability or wait until judgment is complete, including assessment of damages, and appeal against both orders by one compendious notice or separate notices
  • An extension of time will not be granted where the appeal could not possibly succeed; there must be a substantial issue to be decided
  • Where a full appeal is intended, non-service of an earlier notice of appeal and the absence of an earlier record do not prejudice the respondent if the appeal can still be put in order

Court orders

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  1. 1.The first notice of appeal to be served on the plaintiff within 7 days
  2. 2.Notice of appeal against the order of March 24, 1987 to be filed and served within 10 days
  3. 3.The whole record of appeal to be filed and served within 60 days of the date 10 days from the ruling date, unless the court extends the 60 days further on application on notice
  4. 4.Costs of the amended application to be costs in the cause of the appeal
  5. 5.Costs of the first application to be borne by the applicant in accordance with the order of July 1, 1987

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PL
majority

Wrote the judgment

On appeal from
High Court of Kenya
not stated in judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

Relief refused

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Costs of the first (misguided) application for extension of time

Costs were to be borne by the applicant per the earlier order of July 1, 1987

p. 3

Costs

Costs of the amended application to be costs in the cause of the appeal; costs of the first application to be borne by the applicant in accordance with the order of the court given on July 1, 1987

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

There being, to my mind, a substantial issue to be decided, and good reasons for the delay I grant the application
p. 3extension of time - disposition
I agree that if the appeal could not possibly be successful there would be no point in extending time, even under the free discretion of this court within rule 4 of the rules.
p. 3arguability as condition for extension of time
Either the investigator acted as an arbitrator or he did not. There is nothing on the record before me to show in what capacity Mr Wanjohi acted.
p. 3binding effect of labour officer's investigation
On prayer 3 Notice of appeal against the order of March 24, 1987 to be filed and served within 10 days of today's date.
p. 3final orders - notice of appeal against assessment
The costs of the first application to be borne by the applicant in accordance with the order of this court given on July 1, 1987.
p. 3final orders - costs

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, "Kenya Film Corporation v Muthike [1987] KECA 13 (KLR)", Case Analysis (1987). Civil Application No NAI 51 of 1987. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/13/eng@1987-07-30

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