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Court of AppealAllowedNotice of Motion dated 12th November 2009, arising from Nairobi HCCC No. 331 of 2008· [2009] KECA 25 (KLR)

Court of Appeal In Kenya v Juja Road Fancy Store Limited

Court of Appeal of Kenya
16 December 2009
1,784 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave CFC Financial Services more time to file its appeal record, confirming that waiting for leave to appeal is a valid reason for delay.

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 delivered by Onyango Otieno, JA on 16th December 2009 in an application under rule 4 of the Court of Appeal Rules by CFC Financial Services Limited seeking extension of time to lodge and serve a record of appeal from a High Court ruling of 6th February 2009 (Khaminwa, J) in Nairobi HCCC No. 331 of 2008. The applicant filed a notice of appeal in time but its former advocates failed to appreciate that leave to appeal was required; new advocates applied for leave on 7th April 2009, which was granted on 23rd October 2009, and the extension application was lodged on 12th November 2009. The respondent, though filing no replying affidavit, opposed on the ground that no letter bespeaking proceedings had been written under the proviso to rule 81. The court held that allegations made at the bar without affidavit support cannot be acted upon, and that in any event the validity of the intended appeal is for the full Court, not a single Judge. Applying the settled rule 4 principles - length of delay, explanation, arguability without a mini-appeal, and prejudice - the court found the delay explained by the wait for leave, the intended appeal arguable, and no prejudice established. It also held that a record filed before leave is granted is of no consequence. The application succeeded: thirty days were granted to file and serve the record of appeal, with costs in the intended appeal.

Key legal issues

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01

Principles governing extension of time under rule 4

Holding

The Court applies settled guidelines - period of delay, explanation for delay, arguability of the intended appeal without a mini-appeal on the merits, and prejudice to the respondent - while retaining an unfettered discretion exercised judicially.

Reasoning

The court restated the principles from Joseph Mweteri Igweta, endorsed by Pan African Paper Mills and Leo Sila Mutiso, stressing that the guidelines are not exhaustive and that time limits are there to be observed, so laxity may defeat justice. Applying them, the delay from 2nd May to 12th November 2009 was explained by the wait for the superior court's ruling on leave, and the applicant's facts stood unchallenged for want of a replying affidavit.

p. 2
02

Effect of unsubstantiated bar allegations on an unopposed application

Holding

The respondent's contention that no letter bespeaking proceedings had been written could not be considered because it was not deponed to in any replying affidavit.

Reasoning

The respondent filed no replying affidavit; the objection rested on allegations made at the bar, which the court cannot act upon. Moreover, the objection went to the validity of the intended appeal, a question for the full Court, not a single Judge hearing a rule 4 application.

p. 3
03

Whether awaiting leave to appeal before filing the record explains the delay

Holding

Yes - a party who desires to appeal may properly seek leave and wait for its grant before lodging the record; filing earlier would be futile as the record would be invalid until leave is granted.

Reasoning

The court rejected the respondent's argument that the record could have been filed and leave introduced later by supplementary record, holding such a filing would be of no consequence until leave was granted. The period between the leave application and its grant on 23rd October 2009 was therefore a valid explanation for the delay.

p. 3
04

Arguability and prejudice

Holding

The draft memorandum of appeal showed the intended appeal was arguable, not frivolous, and the respondent established no prejudice.

Reasoning

The court perused the draft memorandum annexed to the application and concluded the intended appeal was arguable without deciding its merits. No prejudice was raised or apparent, the respondent having filed no replying affidavit raising any prejudicial matter.

p. 3

Legal principles established

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  • In a rule 4 extension-of-time application the Court exercises an unfettered discretion, exercised judicially on the settled guidelines: length of delay, reason for delay, arguability of the intended appeal without considering its merits, and prejudice to the respondent.
  • Allegations made at the bar, not supported by a replying affidavit, cannot form the basis of a judicial decision.
  • A party may properly seek and await leave to appeal before lodging the record of appeal; a record filed before leave is granted is of no consequence until leave is granted.
  • A single Judge on a rule 4 application cannot determine whether the intended appeal would be valid; that is a matter for the full Court.

Court orders

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  1. 1.The applicant is granted thirty (30) days from the date of the ruling to file and serve the record of appeal
  2. 2.Costs of the application to be in the intended appeal
On appeal from
High Court of Kenya at Nairobi
Nairobi (Commissioner and Tax Division, Milimani) HCCC No. 331 of 2008
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time jurisdiction exercised by a single Judge)

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, "Court of Appeal In Kenya v Juja Road Fancy Store Limited", Case Analysis (2009). Notice of Motion dated 12th November 2009, arising from Nairobi HCCC No. 331 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/25/eng@2009-12-16

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