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Court of AppealPartially AllowedCivil Application No. NAI. 184 of 2006

NICHU INVESTMENTS LIMITED v PAN AFRICAN CREDIT AND FINANCE LIMITED (IN LIQUIDATION) [2009] KECA 226 (KLR)

Court of Appeal of Kenya
17 July 2009
1,560 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 extended time to file an appeal record due to an advocate's illness, but refused a duplicate notice of appeal already validly filed.

What this practically means

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Executive summary

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This is a ruling by the Court of Appeal (Omolo, JA, single Judge) on a motion dated 25th August 2008 under Rule 4 of the Court's Rules by Nichu Investments Ltd seeking enlargement of time to lodge (i) a notice of appeal and (ii) a record of appeal out of time in an intended appeal against Pan African Credit and Finance Ltd (In Liquidation). The court restated the settled guidelines from Leo Sila Mutiso v Rose Hellen Wangari Mwangi and Mwangi v Kenya Airways Ltd: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent, while emphasising that the list is not exhaustive because Rule 4 confers an unfettered discretion to be exercised judicially. The court rejected the first prayer because a valid notice of appeal had already been lodged on 2nd August 2004 within the Rule 74(2) period, and a second notice from the same party out of a single decision is not permissible. On the record of appeal, the court held the explainable delay ran only from about 18th April 2006 (when proceedings were available; certified copies being unnecessary for lodgment) to 25th August 2006, about three months. The delay was explained by the serious illness and death of the applicant's previous advocate, Mr. A.L.R. Shah. Weighing the advocate's imprudence in locking the file away against his indisputable illness, and the hardship of striking out a record already filed, the court extended time to include 25th August 2006, validating the record. The applicant was ordered to pay the respondent's costs of the motion. The motion was thus partially allowed.

Questions the Court framed

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

  1. 1.Whether time should be extended for the applicant to lodge a notice of appeal out of time
  2. 2.Whether time should be extended for the applicant to lodge the record of appeal out of time, applying the Mutiso guidelines: length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent

Key legal issues

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01

Whether a second notice of appeal could be lodged out of time

Holding

Rejected, because a valid notice of appeal had already been lodged within the Rule 74(2) period and two notices of appeal by the same party from a single decision are not permissible

Reasoning

The judgment sought to be appealed was delivered on 30th July 2004 and a notice of appeal was lodged on 2nd August 2004, within the fourteen days allowed by Rule 74(2). That notice remained in existence and was included in the record of appeal. Allowing another notice would duplicate an existing, valid notice, so the court refused that prayer.

p. 2
02

Whether time should be extended for lodging the record of appeal

Holding

Granted; time extended to include 25th August 2006, when the record of appeal was lodged, on grounds of the advocate's illness and death, minimal delay of about three months, and the hardship of striking out a record already filed

Reasoning

The court applied the Mutiso guidelines. The delay ran from about 18th April 2006 to 25th August 2006, roughly three months. The delay was explained by the serious illness and subsequent death of the previous advocate, Mr. A.L.R. Shah, who had locked the file in his drawer. Once new counsel obtained the file, the record was lodged the same month. Weighing the advocate's imprudence against the illness, the court found it too hard to have the record struck out, while noting the respondent's claimed prejudice.

p. 3
03

When the delay begins to run where a party insists on certified copies of proceedings

Holding

Certified copies are not necessary for lodging an appeal, so the delay runs from when the proceedings were first available for collection

Reasoning

The certificate of delay showed proceedings were supplied on 16th May 2006, but the applicant had insisted on certified copies of proceedings and judgment, which were unnecessary for lodging an appeal. A letter of 18th April 2006 informed the applicant the documents were available for collection, so the explainable delay ran from that date, about three months to lodgment of the record.

p. 2

Legal principles established

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  • An extension of time under Rule 4 is discretionary and guided principally by the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent
  • The list of Rule 4 factors is not exhaustive; a single judge may consider any other relevant factor so long as the discretion is exercised judicially
  • The burden lies on the party seeking the extension to satisfy the Court that there are good grounds for enlarging time

Court orders

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  1. 1.Rejection of the prayer for extension of time to lodge a notice of appeal out of time
  2. 2.Extension of time to include 25th August, 2006, the date the record of appeal was lodged, validating the filing of the record of appeal out of time
  3. 3.Applicant to pay the respondent the costs of the motion

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single Judge's discretion to extend time)

Relief refused

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Extension of time to lodge a notice of appeal out of time

A valid notice of appeal was already lodged on 2nd August 2004 and a second notice from the same party out of a single decision would not be permissible

p. 2

Costs

The applicant must pay to the respondent the costs of the motion.

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.

I accordingly allow that part of the motion seeking the extension of time to lodge the record of appeal out of time and I extend the time to include the 25th August, 2006 when the record was lodged. I have rejected the prayer for extension of time to lodge the notice of appeal.
p. 3Final orders - partial extension of time
It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary.
p. 1Discretionary nature of Rule 4 extension
In these matters, the burden is really on the party seeking the extension to satisfy the Court that there are good grounds for enlarging time.
p. 3Burden of proof on extension applications
On costs, I think the applicant must pay to the respondent the costs of the motion and I so order.
p. 3Costs of the motion

Issues in the judgment

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minor

The judgment is a single-Judge ruling under Rule 4; the heading and formal case number/citation details are absent from the certified copy supplied, so the case number and title are inferred from the text

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, "NICHU INVESTMENTS LIMITED v PAN AFRICAN CREDIT AND FINANCE LIMITED (IN LIQUIDATION) [2009] KECA 226 (KLR)", Case Analysis (2009). Civil Application No. NAI. 184 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/226/eng@2009-07-17

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