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Court of AppealAllowedCivil Application No. 236 of 2006

National Industrial Credit Bank Ltd v Barclays Bank of Kenya Ltd & another [2010] KECA 151 (KLR)

Court of Appeal
16 July 2010
2,139 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 ruled that a one-day delay in filing did not block the bank's appeal, because clerks' mistakes shouldn't count against a party seeking more time.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Tunoi, O'Kubasu and Keiwua, JJA) on a reference to the full court from a decision of a single judge (Deverell, JA) who had dismissed National Industrial Credit Bank Ltd's application under Rule 4 for an extension of time to lodge an appeal against a High Court ruling of Kasango, J dated 27 June 2005. The 2nd respondent argued the reference was incompetent, having been filed on the eighth day after the single judge's ruling of 29 August 2007. The full court held that an apparent one-day delay should not bar the reference, in light of the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act. The court then restated the limited grounds on which a full bench may interfere with a single judge's Rule 4 discretion: consideration of an irrelevant matter, failure to consider a relevant one, misapprehension of evidence or law, or a plainly wrong decision; a reference is not an appeal. Finding that the single judge had overemphasised prejudice to the respondent and taken into account the irrelevant fact that the applicant's advocates should have employed clerks who would not repeat mistakes, and applying Murai v Wainaina (No. 3) on advocates' bona fide mistakes, the court allowed the reference, set aside the single judge's orders, allowed the notice of motion, directed the applicant to file its appeal within 21 days, and ordered costs of the reference and motion to be in the appeal.

Questions the Court framed

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

  1. 1.Whether the reference was incompetent for having been filed on the eighth day, outside the seven-day period in Rule 54(1)(b)
  2. 2.Whether the full Court was entitled to interfere with the exercise of discretion by the single judge under Rule 4
  3. 3.Whether the single judge took into account irrelevant matters or failed to take relevant matters into account in dismissing the application for extension of time

Key legal issues

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01

Competence of a reference filed one day out of time under Rule 54(1)(b)

Holding

The reference was not incompetent despite being filed on the eighth day.

Reasoning

Although on its face the reference appeared filed a day late, the court invoked the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, which requires just, expeditious, proportionate and affordable resolution of appeals, and held that an apparent delay of only one day should not deny the applicant the opportunity to pursue the reference.

p. 2
02

Standard for interference by the full court with a single judge's Rule 4 discretion

Holding

Interference is permissible only on limited grounds; a reference is not an appeal and the full court cannot simply substitute its own discretion.

Reasoning

The court restated that a single judge exercising Rule 4 discretion acts on behalf of the whole court. The full bench may interfere only where the judge considered an irrelevant matter, ignored a relevant one, misapprehended evidence or law, or reached a plainly wrong decision. It is not enough that the full court would have reached a different result.

p. 3
03

Whether the single judge misdirected himself on the explanation for delay and prejudice

Holding

The single judge took into account irrelevant considerations and overemphasised prejudice, justifying interference.

Reasoning

The single judge had criticised the firm of advocates for employing clerks prone to repeating mistakes in failing to serve the notice of appeal, which the full court held was irrelevant, since an advocate's bona fide mistake may amount to sufficient cause. He also put prejudice above the other factors without adequately weighing the explanation for the delay.

p. 4
04

Factors for extension of time under Rule 4

Holding

The factors are the length of delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent, but the list is not exhaustive.

Reasoning

Relying on Mwangi v Kenya Airways Ltd and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court affirmed that extension of time is discretionary and that the four listed factors apply generally, but Rule 4 confers an unfettered discretion permitting a judge to consider any other relevant factor; limiting the inquiry to the four factors would wrongly fetter that discretion.

p. 4

Legal principles established

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  • A full court may only interfere with a single judge's exercise of discretion under Rule 4 where the judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence or law, or the decision was plainly wrong; a reference is not an appeal.
  • Once a satisfactory explanation for delay has been given, an applicant for extension of time is entitled to it; the relevant considerations are the length of delay, the explanation given, the chances of the appeal succeeding and the degree of prejudice to the respondent.
  • An advocate's bona fide mistake may amount to sufficient cause for delay; mistakes by counsel's clerks should not weigh against an applicant as an irrelevant consideration.
  • Under sections 3A and 3B of the Appellate Jurisdiction Act, a one-day delay in filing a reference should not deprive a party of the opportunity to pursue it, in line with the overriding objective.

Court orders

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  1. 1.The reference to the full court is allowed
  2. 2.The orders of the single judge made on 29th August 2007 are set aside
  3. 3.The notice of motion dated 16th October 2006 is allowed, extending time for lodging the appeal
  4. 4.The applicant is to file its appeal within 21 days from the date of the ruling
  5. 5.Costs of the reference and the motion to be costs in the appeal

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi, Milimani Commercial Court
H.C.C. Suit No. 293 of 2001
Jurisdiction invoked
Rule 54(1)(b) of the Court of Appeal Rules (reference from decision of a single judge) read with Sections 3A and 3B of the Appellate Jurisdiction Act

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.

In the result, we allow the reference, set aside the orders of the single Judge made on 29th August, 2007 and substitute therefor an order allowing the notice of motion dated 16th October, 2006.
p. 4Final orders - reference allowed and extension of time granted
We direct that the applicant do file its appeal within 21 days from the date hereof. Costs of this reference and the motion be in the appeal.
p. 4Direction on filing and costs
a reference under that rule is not an appeal to the full Court.
p. 3Nature of a reference under Rule 54
In our view, once an explanation has been given and is satisfactory, the applicant would be entitled for extension of time.
p. 4Entitlement to extension where explanation is satisfactory
Rule 4 gives the single judge an unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed
p. 4Non-exhaustive list of extension-of-time factors

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, "National Industrial Credit Bank Ltd v Barclays Bank of Kenya Ltd & another [2010] KECA 151 (KLR)", Case Analysis (2010). Civil Application No. 236 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/151/eng@2010-07-16

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