Benson W. K. Muigai v Co-operative Merchant Bank of Kenya Ltd [2008] KECA 198 (KLR)
The bottom line
#Kenya's Court of Appeal excused a two-year filing delay caused by serious illness, showing courts can extend appeal time when delay is explained and the appeal has merit.
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 applicant should be granted an extension of time to file a Notice of Appeal and lodge the Record of Appeal out of time against the ruling of Emukule J delivered on 19th May 2005
- 2.Whether the substantial delay of approximately two years and three and a half months was adequately explained
- 3.Whether the intended appeal has chances of success
- 4.Whether the respondent would suffer prejudice if the extension is granted
Key legal issues
#Whether the applicant's explanation for the delay of approximately two years and three and a half months was sufficient to justify extension of time
The medical evidence of serious illness (hypertension and diabetes) went a considerable way towards explaining the failure to act promptly, and the delay was excused.
The applicant produced a doctor's certificate showing long-standing hypertension and diabetes exacerbated by stress, requiring bed rest and strict rest from business. The judge accepted this explained both the loan arrears and the failure to give prompt instructions after learning of the striking out of the defence, concluding the delay was not intentional.
Whether the intended appeal had sufficient chances of success to warrant extension of time
Although the delay was substantial, the appeal was not so hopeless that extension would be futile; triable issues such as failure to give an account after sale of the charged property were raised.
The applicant's affidavit identified triable issues: failure by the bank to give an account before and after the sale of the charged property, the terms of the loan facility, interest after July 1997, and estoppel. The claim had grown substantially to over Kshs 20 million, so the appeal was not merely an abuse of process.
Whether the respondent bank would suffer prejudice if the extension were granted
The court weighed the competing prejudice submissions and concluded that the delay would not cause such prejudice as to outweigh the applicant's right to be heard on appeal.
Counsel for the applicant argued a large commercial bank would suffer no prejudice; the bank argued denial of the fruits of a 2005 judgment would grossly prejudice it. The judge exercised his unfettered but judicial discretion in favour of granting the extension.
Legal principles established
#- The discretion to extend time is unfettered but must be exercised judicially, taking into account the length of delay, the explanation for it, the chances of the appeal succeeding, and prejudice to the respondent.
- A substantial delay may still be excused where the intended appeal is not wholly unmeritorious; an extension will be refused only where the appeal has no chance of success.
Court orders
#- 1.Time for lodging a notice of appeal against the ruling of Emukule J dated and delivered on 19th May 2005 extended to expire fourteen days from the delivery of the ruling
- 2.The notice of appeal must be served on the respondent within seven days of lodging, in accordance with rule 76 of the Court of Appeal Rules
- 3.Costs of the application to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- HCCC No. 781 of 2001
- Jurisdiction invoked
- Inherent discretion to extend time under rule 76 of the Court of Appeal Rules
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.
My discretion in deciding applications of this nature is unfettered but must be exercised judicially and having taken into account all of the above I have reached the conclusion that the extension sought should be granted.
The length of delay sought to be excused is certainly substantial but this is not one of those cases where it can be said that there is no chance of an appeal succeeding so that granting an extension would be to act in vane.
I therefore hereby order that the time for lodging a notice of appeal against the ruling of Emukule J. dated and delivered on 19th May 2005 be extended to expire fourteen days from the delivery of this ruling
Issues in the judgment
#The judgment is a single-judge ruling signed 'JUDGE OF APPEAL'; it is a copy certified by the Deputy Registrar and no appeal or application number appears on its face.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson W. K. Muigai v Co-operative Merchant Bank of Kenya Ltd [2008] KECA 198 (KLR)", Case Analysis (2008). Civil Application (not stated in judgment; notice of motion dated 20th September 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/198/eng@2008-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.