Industrial Distributors Ltd & 1 other v Jagdish Devshi Shah & 1 other
The bottom line
#Kenya's Court of Appeal gave litigants another chance to salvage a struck-out appeal, but only with fresh notices and strict deadlines.
What this practically means
#Executive summary
#Key legal issues
#Exercise of the rule 4 discretion to extend time despite unexplained dilatoriness
The court extended time for fourteen days notwithstanding the applicants' dilatoriness, because the application was brought promptly after the appeal was struck out, the appeal was not decided on the merits, and the applicants had already been punished in costs when the appeal was struck out.
The judge acknowledged the applicants were dilatory, having taken no steps for over a year and a half after service of the application to strike out, and their earlier application for leave to file a supplementary record was itself struck out as incompetent. Nevertheless, the discretion under rule 4 is unfettered. The striking out was on competence grounds, not the merits; the applicants moved promptly after the striking out; and costs had already been awarded against them. On balance the discretion was exercised in their favour, with strict timelines imposed.
Legal principles established
#- The jurisdiction under rule 4 to extend time is discretionary and unfettered; delay, though a relevant factor, does not automatically disqualify an applicant who comes to court promptly after the striking out of a defective appeal that was not decided on the merits.
- Where an appeal is struck out as incompetent, fresh notices of appeal must be filed within the extended time; the old notices of appeal attached to the struck out appeal cannot be validated by an extension order.
Court orders
#- 1.Extension of time for fourteen (14) days from the date of the order within which the applicants shall file and serve fresh notices of appeal against the decisions of the superior court dated 22nd May 2000 and 18th May 2001
- 2.The applicants shall have 30 days thereafter to lodge and serve a record of appeal
- 3.The applicants shall pay the costs of this application
- On appeal from
- High Court
- Milimani High Court Civil Case No. 1851 of 1999
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Industrial Distributors Ltd & 1 other v Jagdish Devshi Shah & 1 other", Case Analysis (2008). Civil Application (as stated in judgment; number not given). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/31/eng@2008-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.