E C N G v F N N [2004] KECA 144 (KLR)

The single judge held that the rule 4 power, though 'clear and unfettered', must be exercised judicially on sound reasons rather than whim, caprice or sympathy, with justice to the parties as the primary concern. Drawing on Murai v Wainaina (Nos 3 and 4) and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, he identified the governing considerations as the length of and reason for the delay, the arguability of the intended appeal, any public importance, the prejudice to the respondent and the overall interests of justice.

Counsel candidly admitted from the bar that the omission of the certified order from the record of appeal was his own mistake, and the supporting affidavit deposed that the applicant had 'already obtained the requisite dismissal order to regularize the inadvertence'. Relying on the settled line of authority - notably Madan JA in Murai v Wainaina (No 4) and Lakha JA in Grindlays Bank - the court accepted the mistake as genuine, held it should be borne by the advocate rather than the litigant, and noted that counsel had acted expeditiously to correct it.

The applicant's counsel computed the delay at five days, reckoning from the issuance of the certified order on 22 October 2003, without which he said the motion could not be filed; the respondent computed twenty days from the striking out of the appeal on 7 October 2003. The court declined to resolve the dispute arithmetically, holding that on either count the delay fell far short of being inordinate, particularly as counsel had moved expeditiously upon realising the mistake.

The court was satisfied that the intended appeal was not frivolous. It was 'definitely arguable' on the ground that the judge of the superior court had applied a standard of proof higher than the law requires in a divorce petition founded on cruelty, having required proof beyond reasonable doubt. The court characterised this as a point of public importance, asking rhetorically whether petitioners in divorce causes must brace themselves to prove cruelty beyond reasonable doubt. The substantive question was, however, left for the full bench hearing the appeal.

On the final factor in the extension-of-time analysis, the court found no prejudice to the respondent: her status vis-à-vis the applicant could not and would not be affected by the preferment of the appeal. The absence of any irreversible harm to her position weighed in favour of granting the extension and preserving the applicant's access to the appellate process.

Reaffirming the basis on which the earlier appeal had been struck out, the court stated that it was 'quite proper' for the Court to strike out a record of appeal that omitted a primary document, because rule 85(1)(h) makes it mandatory for the record to contain a certified copy of the decree or order appealed against. The observation confirms the mandatory character of the rule, though the correctness of the striking out was not itself in issue before the court.

The single judge did not decide whether cruelty in a divorce petition must be proved beyond reasonable doubt. His task on the rule 4 motion was confined to assessing whether the intended appeal was arguable; he found it arguable on precisely this ground and added that it was a point of public importance. The substantive question therefore remains open for determination by the full bench when the fresh appeal is heard.