Stephen Ndungu Kimari v Devkesh General Stores Ltd [2001] KECA 337 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that losing a review application doesn't block an appeal, and granted more time to file one.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal can still be preferred after an application for review arising from the same suit has been dismissed.
- 2.Whether the delay in filing the application for extension of time was inordinate and, if so, whether it was satisfactorily explained.
- 3.Whether, weighing the length of and explanation for the delay, prejudice to the respondent, the effect on public administration and the need to observe time limits, the discretion to extend time should be exercised in the applicant's favour.
Key legal issues
#Whether the dismissal of an application for review bars a party from preferring an appeal against the original decision.
It does not. An appeal may still be preferred after a review application has been dismissed; the bar operates only in the reverse direction, where an appeal has been decided a review may not lie.
The respondent relied on three Court of Appeal authorities for the proposition that a dismissed review precluded an appeal. The court carefully considered each and found that none so provides. It drew the distinction that a decided appeal may preclude a review, but the converse does not follow. Being so satisfied, the court held it was open to the plaintiff to seek to file an appeal, clearing the first obstacle to the extension.
Whether the delay in filing the application for extension of time was inordinate and satisfactorily explained.
The delay was short and satisfactorily explained. The plaintiff's advocate had misled him; the plaintiff took reasonable steps once he learnt the true position, and the delay was not inordinate.
The application was filed on 31 July 2000, shortly after the dismissal of the plaintiff's own review application on 19 July 2000. The intervening period was explained by the conduct of the plaintiff's then advocate, who had pursued a review unknown to the plaintiff and had misled him. Once the plaintiff learnt the true position he acted reasonably and promptly. The respondent did not rely on any prejudice arising from the short delay.
Whether the court's discretion to extend time under rule 4 of the Court of Appeal Rules should be exercised in the applicant's favour.
Yes. Balancing the short, explained delay, the absence of prejudice to the respondent and the absence of any adverse effect on public administration against the need to observe time limits, this was a fit and proper case for the extension to be granted.
The court acknowledged that a broad approach to extension is not a passport to ignore time limits, since laxity in compliance may seriously defeat justice. Applying the criterion to the facts, the delay was short, the respondent claimed no prejudice, and public administration would not suffer. Weighing these factors, the judge found it a fit and proper case to exercise his discretion and granted the extension as sought, with time-bound directions for filing and service.
Legal principles established
#- The dismissal of an application for review does not bar a party from preferring an appeal against the underlying decision; the bar runs only one way - a decided appeal may preclude a review, but a dismissed review does not preclude an appeal.
- Delay in lodging an appeal is satisfactorily explained, and is not inordinate, where the party's advocate misled the party and the party took reasonable steps promptly upon learning the true position.
- In deciding whether to extend time the court weighs the length of and explanation for the delay, prejudice to the respondent and the effect on public administration, while bearing in mind that time limits exist to be observed and that laxity in compliance may defeat justice.
Court orders
#- 1.The application for extension of time is granted.
- 2.The applicant may file a notice of appeal within ten days from 5 February 2001.
- 3.The notice of appeal to be served upon the respondent within seven days of its filing.
- 4.The record of appeal to be filed within forty-five days from the date of the filing of the notice of appeal.
- 5.The applicant to pay the respondent the costs of the application in any event.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- High Court Civil Case No. 1586 of 1993
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (single Judge of Appeal, extension of time application)
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.
Accordingly, the application is granted. I order that the applicant may file a notice of appeal within ten days from today and serve the same upon the respondent within seven days of its filing. For the sake of completeness, I also order that the record of appeal be filed within forty-five days from the date of the filing of the notice.
In my judgment, none of these authorities shows that merely because an application for review has been dismissed an appeal cannot be preferred. If an appeal had been decided, a review may not lie but the contrary is not the case.
The plaintiff's advocate clearly had been misleading the plaintiff who took reasonable steps once he learnt of the true position. I do not consider that the delay in this case has been in any way inordinate.
time limits were there to be observed and justice might be seriously defeated if there was laxity in respect of compliance with them
The applicant shall pay to the respondent the costs of this application in any event.
Issues in the judgment
#The judgment does not state the names of the parties or the number of the Court of Appeal application; the parties are referred to only as 'the plaintiff' and 'the defendant', and the underlying suit is identified only as High Court Civil Case No. 1586 of 1993.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Ndungu Kimari v Devkesh General Stores Ltd [2001] KECA 337 (KLR)", Case Analysis (2001). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/337/eng@2001-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.