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Court of AppealDismissedCivil Application (Nai.) arising from H.C. Winding-up Causes Nos. 51 and 52 of 1998

Jayantkumar Vrajlal Shah & another v Midco Holdings Limited & another [2003] KECA 135 (KLR)

Court of Appeal of Kenya
11 April 2003
1,103 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a third chance to file an appeal because the applicants never explained their repeated delays — unexplained delay kills appeals.

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 at Nairobi by Owuor, J.A on a Notice of Motion under Rules 4 and 44 of the Court of Appeal Rules, in which Jayantkumar Vrajlal Shah and Mrs. Shiksha Devidas sought leave to file and serve a notice of appeal and record of appeal out of time against a consolidated judgment of Hewett, J. delivered on 3rd April 2001 in H.C. Winding-up Causes Nos. 51 and 52 of 1998. The High Court had fixed 31st March 2001 as the effective date for valuation of shares in a minority buy-out. The applicants' first appeal (Civil Appeal No. 118 of 2001) was struck out on 28th October 2002 for want of primary documents contrary to Rule 85(1); time was extended by Kwach, J.A on 12th November 2002; the second appeal (C.A No. 299 of 2002) was struck out on 24th February 2003 on counsel's concession of fatal defects including, again, an incomplete record. The applicants then made the present third application, relying only on absence of prejudice to the respondents and public interest in the appeal. The respondents, through Mr. Wangara, opposed, contending the default was deliberate and unexplained, and relied on Yashvin A. Shretta v Vadag Establishment. Holding that no genuine explanation for the repeated default had been given, and that the omission was deliberate rather than accidental, the court found no material on which to exercise its discretion. It declined to grant a third chance, holding the interests of justice did not require an extension, and dismissed the application with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the applicants should be granted leave to file and serve a Notice of Appeal and record of appeal out of time, this being their third attempt after two appeals were struck out
  2. 2.Whether the applicants' unexplained default was deliberate such that the court should decline to exercise its discretion in their favour

Key legal issues

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01

Whether extension of time should be granted for a third attempt to mount an appeal after two records of appeal were struck out

Holding

Extension refused because the applicants offered no explanation for the default, which was deliberate and not attributable to accident or counsel's mistake.

Reasoning

The applicants had already been granted an indulgence by Kwach, J.A in November 2002 after their first appeal was struck out, yet the second appeal was again struck out for incomplete records, counsel conceding fatal defects. The applicants' supporting affidavit advanced only lack of prejudice and public interest, giving no explanation for the repeated default. Without genuine explanation, the court found no material on which to exercise its discretion, and the omission being deliberate, extension was unlikely to be granted.

p. 2
02

Whether lack of prejudice to the respondents and public interest in the appeal justified extension of time

Holding

No. The respondents, being trading companies, had suffered prejudice from the long pendency of the winding-up cause, and public interest could not cure an unexplained deliberate default.

Reasoning

The applicants argued no prejudice would be caused and that the appeal involved points of public and judicial importance. The court rejected this, holding that the companies had waited a long time with the winding-up cause hanging over them. The court also reiterated that hearing a party on the merits is in the interests of justice, but a party who misuses the opportunity given cannot claim manifest injustice from being denied a third chance.

p. 2

Legal principles established

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  • In an application for extension of time, the predominant consideration is the reason for the omission; where the default was deliberate rather than due to accident or mistake, the court will be unlikely to grant an extension.
  • A party seeking extension of time must place material before the court explaining the default; without such explanation the discretion cannot be exercised in its favour.
  • While it is in the interests of justice that a party be heard on the merits, a party who repeatedly ignores or misuses the court's indulgence may be denied a further chance without manifest injustice.

Court orders

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  1. 1.The application for extension of time to file and serve notice of appeal and record of appeal out of time is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya
H.C. Winding-up Causes Nos. 51 and 52 of 1998
Jurisdiction invoked
Rules 4 and 44 of the Court of Appeal Rules (application for extension of time to file and serve notice of appeal and record of appeal out of time)

Relief refused

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Extension of time to file and serve a Notice of Appeal out of time

No genuine explanation for the repeated default was given; the omission was deliberate, and the applicants had already been granted an indulgence twice

p. 2

Extension of time to file and serve a record of appeal out of time

The interests of justice did not require an extension in a third attempt after two records of appeal were struck out for fatal defects

p. 2

Costs

The application is dismissed with costs to the respondents.

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.

It suffices to say, that in considering this application to grant an extension, the predominant consideration is not whether there was an omission to serve the party affected with the notice of appeal, but, I think, the reason why there was such an omission.
p. 2Predominant consideration in extension-of-time applications
If the omission was deliberate and not due to accident or mistake, the court would in my view, be unlikely to grant an extension.
p. 2Deliberate default and extension of time
no material has been put before me to enable me to decide whether I should or should not exercise my discretion in favour of the applicants.
p. 2Burden to explain default
if the party chooses to ignore or misuse the opportunity given to it, I see no manifest injustice in not offering that party a third chance particularly in a situation as pertained in this application, where the omission or default was deliberate and not due to any accident or mistake.
p. 2No manifest injustice in refusing a third chance
This application therefore fails. The same is dismissed with costs to the respondents.
p. 2Final orders and 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, "Jayantkumar Vrajlal Shah & another v Midco Holdings Limited & another [2003] KECA 135 (KLR)", Case Analysis (2003). Civil Application (Nai.) arising from H.C. Winding-up Causes Nos. 51 and 52 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/135/eng@2003-04-11

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