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Court of AppealAllowedNotice of motion dated 3rd June, 2019

Kenya Tea Development Agency & another v Kiambati (Civil Application 86 of 2019) [2021] KECA 82 (KLR)

Court of Appeal of Kenya
22 October 2021
1,439 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave a litigant extra time to file an appeal record, holding that delays caused by the court registry are excusable.

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 by R. N. Nambuye, JA, delivered on 22nd October, 2021, on a notice of motion dated 3rd June, 2019 brought under Rules 4 and 82 of the Court of Appeal Rules seeking extension of time to file a record of appeal. The applicants had been appellants in Meru High Court Civil Appeal No. 5 of 2013, whose application to reinstate their appeal was dismissed by Anne C. A. Ong'injo, J. on 27th September, 2018. They timeously filed a notice of appeal on 16th October, 2018 and besp proceedings, but typed proceedings were only supplied on 10th May, 2019, by which time the sixty-day period under Rule 82(1) had lapsed. The respondent, through its advocates Mithega & Kariuki, expressly did not oppose the application. Adopting the principles crystallised by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v. IEBC - that extension of time is an equitable, discretionary remedy requiring a satisfactory explanation for the delay and absence of prejudice - the court found the roughly twenty-four-day delay between capacitation and filing excusable, distinguishing George Mwende Muthoni and Aviation Cargo Support Limited where longer, unexplained delays were disapproved. The application was allowed: the applicant was given sixty days from the ruling to file and serve the record of appeal, with no order as to costs since the application was uncontested.

Questions the Court framed

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

  1. 1.Whether the applicant has satisfied the principles for grant of extension of time under Rule 4 of the Court of Appeal Rules to file the record of appeal out of time under Rule 82(1).

Key legal issues

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Whether the delay in filing the record of appeal was excusable

Holding

The delay was occasioned by the registry's late supply of typed proceedings; from capacitation on 10th May, 2019 to filing on 3rd June, 2019 was only about twenty-four days, which was excusable and uncontested.

Reasoning

The applicant timeously filed the notice of appeal and letter bespeaking proceedings. Typed proceedings were only supplied on 10th May, 2019, after which the application was filed within approximately twenty-four days. This fell far below the twenty-month delay in George Mwende Muthoni where extension was refused. The respondent did not oppose the application, and the Salat principles were satisfied.

p. 3

Legal principles established

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  • Extension of time is an equitable discretionary remedy available only to a deserving party, who must lay a basis to the satisfaction of the court, explaining the delay, absence of prejudice to the respondent, that the application was brought without undue delay, and public interest in suitable cases.
  • Under Rule 82(1), the record of appeal must be filed within sixty days of the notice of appeal, but time taken by the registry to prepare and supply a certified copy of proceedings is excluded from that computation.

Court orders

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  1. 1.The applicant has sixty (60) days from the date of the ruling to file and serve the record of appeal.
  2. 2.There will be no order as to costs as the application was not contested.

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya at Meru
Meru High Court Civil Appeal No. 5 of 2013
Jurisdiction invoked
Rules 4 and 82 of the Court of Appeal Rules

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.

The applicant has sixty (60) days from the date of this ruling to file and serve the record of appeal.
p. 3Final orders - extension granted
There will be no order as to costs as the application was not contested.
p. 4Costs
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
p. 2Rule 4 principles

Issues in the judgment

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minor

The judgment states the application is dated 3rd June, 2019, but later refers to 'the filing of the application under consideration dated 3rd June, 2021', an internal date discrepancy.

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, "Kenya Tea Development Agency & another v Kiambati (Civil Application 86 of 2019) [2021] KECA 82 (KLR)", Case Analysis (2021). Notice of motion dated 3rd June, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/82/eng@2021-10-22

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