Joyce Akinyi Ochieng v Antony Chinedu Ifedigbo & 2 others [2013] KECA 272 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time for a late appeal because a nearly three-year delay was never properly explained with evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether extension of time should be granted to file and serve the notice of appeal filed out of time
- 2.Whether extension of time should be granted to file and serve the record of appeal against the ruling of 21st September 2010
- 3.Whether the applicant's advocate should personally bear the costs
Key legal issues
#Explanation for delay in serving notice of appeal
The 5-day delay in serving the notice of appeal was unexplained; a notice of appeal does not require endorsement by the Registrar before service, and the mistaken belief was not deposed to in an affidavit.
The applicant asserted from the Bar that the delay arose from a belief that the Registrar's endorsement was required before service. The court rejected this because it was not stated on affidavit, and clarified that endorsement is not a prerequisite to service of a notice of appeal. Unsubstantiated assertions from the Bar cannot found the exercise of the Rule 4 discretion.
Explanation for inordinate delay in filing the record of appeal
A delay of 2 years and 9 months was not satisfactorily explained; financial constraints were asserted without evidence, and the applicant did not pursue the option of appealing as a pauper.
While lack of financial resources can justify delay, the claim that the applicant owed her lawyers Sh.5 million was made from the Bar with no fee note or demand letter exhibited. The court noted that the applicant could have applied to appeal as a pauper, which 'works', but did not do so. An inordinate, unexplained delay defeats the Rule 4 application.
Chances of success of the intended appeal
No draft memorandum of appeal was placed before the court, leaving it with no way to assess whether the intended appeal was arguable.
Counsel referred the court to a draft memorandum contained in a stay application in other proceedings not part of the record. The court held that it could not gauge the arguability of the intended appeal from materials outside the application, so this factor told against the applicant.
Prejudice to the respondent
Granting the extension would prejudice the respondent by preventing him from executing the orders in his favour and enjoying the fruits of his litigation after a long time.
The 1st respondent had served a notice to execute after the long lapse of time. Extending time at that last moment would stifle execution and needlessly prolong litigation, which must come to an end. This factor weighed decisively against the application.
Legal principles established
#- Rule 4 extension of time applications are decided by considering the length of the delay, the reason for the delay, the chances of success of the appeal, and the degree of prejudice to the respondent.
- The Rule 4 discretion exists to do justice between parties and is not a remedy for indolent litigants.
Court orders
#- 1.The application for extension of time is dismissed
- 2.Costs of the application awarded to the 1st respondent
- 3.Refusal to order the applicant's advocate to pay costs personally
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- ELC Civil Case No. 304 of 2009
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules
Relief refused
#Extension of time to file and serve the notice of appeal
The 5-day delay in service was not explained; the alleged mistaken belief that the notice had to be endorsed by the Registrar was not stated in an affidavit
Extension of time to file and serve the record of appeal
A delay of 2 years and 9 months was unexplained and unsupported by evidence of financial constraints; no draft memorandum of appeal was produced to show arguability
Personal costs order against the applicant's advocate
No good or compelling reason advanced to justify such an order
Costs
The application is dismissed with costs to the 1st respondent; the applicant's advocate was not ordered to pay costs personally.
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.
In sum this application is dismissed with costs to the 1st respondent.
There has been no good reason advanced or compelling reason to cause me to order that those costs to be paid personally by the applicant's advocate.
First, the length of delay; secondly, the reason for the delay; thirdly (possibly), the chances of success of the appeal if the application is granted; fourthly, the degree of prejudice to the respondent if the application is granted.
This provision of law is not meant to assist an indolent litigant.
To serve a notice of appeal does not require that it be endorsed by the Registrar first.
Litigation must come to an end and the applicant should not be seen to unnecessarily extend it at the last moment when a notice to execute has been served after a long time.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joyce Akinyi Ochieng v Antony Chinedu Ifedigbo & 2 others [2013] KECA 272 (KLR)", Case Analysis (2013). Civil Application No. NAI.122 of 2013 (UR.84/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/272/eng@2013-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.