Industrial & Commercial Development Corporation v Sum Model Industries Ltd [2001] KECA 282 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that losing one appeal does not bar you from a second chance, as long as you file your new application promptly.
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 single Judge wrongly exercised his discretion in granting the applicant extension of time to file notice and record of appeal notwithstanding that the applicant's previous appeal had been struck out.
- 2.Whether the extension of time could properly be refused on the very same grounds which had led to the previous appeal being struck out.
Key legal issues
#Whether the single Judge wrongly exercised his discretion in granting the applicant extension of time to file notice and record of appeal where the applicant's previous appeal had been struck out.
He did not. The previous appeal was struck out on 9th July 2001 and the fresh motion was filed on 19th July 2001, a step counsel for the respondent conceded involved no delay. The single Judge was entitled to hold that the applicant had already been sufficiently punished by the striking out of its previous appeal, and the full Court found nothing to demonstrate any wrong exercise of discretion.
The respondent's counsel sought to have the extension refused on the very same grounds which had led to the previous appeal being struck out. The single Judge declined that objection, reasoning that the applicant had already been sufficiently punished when its appeal was struck out. On the reference, the full Court applied the settled approach that a discretionary decision is interfered with only where a wrong exercise of discretion is shown. Finding no delay in the fresh motion and no error in the single Judge's approach, the Court dismissed the reference with costs to the respondents.
Whether grounds which led to a previous appeal being struck out can be relied upon to defeat a fresh application for extension of time.
No. The single Judge refused to accede to that objection, holding that the applicant had been sufficiently punished when its appeal was struck out, and the full Court found no wrong exercise of discretion in that approach.
The respondent invited the single Judge to refuse the extension for the very same reasons which had led to the previous appeal being struck out. The single Judge held that the striking out had already punished the applicant sufficiently. The full Court endorsed that reasoning on reference, confirming that a party is not barred from a fresh extension application merely because an earlier appeal failed; the sanction has already been exacted, and absent delay or other error the discretion may properly be exercised in the applicant's favour.
Legal principles established
#- A full Court on reference will not interfere with a single Judge's discretionary decision granting extension of time unless a wrong exercise of discretion is demonstrated.
- The striking out of a previous appeal is itself sufficient punishment and does not, without more, justify refusing a fresh application for extension of time that is filed without delay.
Court orders
#- 1.The reference is dismissed.
- 2.Costs of the reference are awarded to the respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 3389 of 1994
- Jurisdiction invoked
- Reference to the full Court against a decision of a single Judge on an application for extension of time to file notice and record of appeal under the Court of Appeal Rules; the ruling itself cites no specific constitutional or statutory provision.
Relief refused
#The respondent's reference seeking to overturn the single Judge's decision granting the applicant extension of time to file notice and record of appeal, and to have the extension refused on the grounds which led to the previous appeal being struck out
The Court found the reference to be without merit; the single Judge had properly held that the applicant had already been sufficiently punished when its previous appeal was struck out, and no wrong exercise of discretion was demonstrated.
Costs
We dismiss this reference with costs to the respondents.
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.
There is absolutely no merit in this reference.
The previous appeal was struck out on 9th July, 2001; the motion was filed on 19th July, 2001. Mr Keyonzo concedes there was no delay there.
The single Judge refused to accede to that objection and held that the applicant before him had been sufficiently punished when its appeal was struck out.
We see nothing to show any wrong exercise of discretion.
We dismiss this reference with costs to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Industrial & Commercial Development Corporation v Sum Model Industries Ltd [2001] KECA 282 (KLR)", Case Analysis (2001). Civil Application No. NAI 248 of 2001 (132/01 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/282/eng@2001-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.