Kitany v Chief of Staff and Head of Public Service & 2 others (Civil Application E387 of 2021) [2022] KECA 138 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal because the applicant misled the court about her own lawyer's role in settling the case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted leave to file and serve the memorandum of appeal out of time under Rule 4 of the Court of Appeal Rules
- 2.Whether the notice of appeal dated 26th June, 2021, filed and served out of time, should be deemed properly filed and served
- 3.Whether the delay of about five months was inordinate and satisfactorily explained
Key legal issues
#Length of the delay
A delay of five months and about five days was less than the twenty-month delay in George Mwende Muthoni, but satisfaction of that factor alone was insufficient
The court applied the benchmark in George Mwende Muthoni, where twenty months' unexplained delay led to refusal. The present delay of roughly five months was comparatively short. However, the court stressed that this single prerequisite must be considered together with the other Salat factors before any relief can be granted.
Reason for the delay and candour of the applicant
The blame placed on advocates was misleading: the same advocate who filed the application had pursued compliance with the judgment and received payment of the decretal sum on the applicant's behalf, and this was unrebutted
The 1st respondent produced documents showing Sheila Cherono forwarded clearance documents, the decree and bank details, and payment was made by voucher of 29th June, 2021. The applicant did not rebut this, warranting an adverse inference of lack of candidness and unclean hands, disentitling her to equitable relief.
Arguability of the intended appeal
The draft memorandum satisfied the threshold for arguability notwithstanding its ultimate outcome, but arguability alone does not compel the grant of relief
The court adopted Sammy Mwangi Kiriethe: an arguable ground is one that is bona fide and warrants interrogation, not one that must succeed. The draft memorandum met this low threshold, yet because other prerequisites failed, arguability could not rescue the application.
Prejudice to the respondent
The 1st respondent had already satisfied the decree at the instigation of the applicant's own advocate, and would suffer prejudice if dragged into appellate litigation
The respondent's assertion that it had complied with the judgment after the applicant's advocate demanded settlement was uncontroverted. The court therefore found the respondent would suffer prejudice in the uncontroverted circumstances, a decisive factor against extending time.
Legal principles established
#- Extension of time is an equitable discretion, not a right, guided by the Salat factors: length of delay, reason for delay, arguability, prejudice, absence of undue delay and public interest
- Sections 1A, 1B, 3A and 3B of the Civil Procedure Act do not apply to the exercise of the Court of Appeal's jurisdiction; Rule 4 of the Court of Appeal Rules is the proper provision
- An arguable ground of appeal need not necessarily succeed but must be bona fide and warrant the court's interrogation
Court orders
#- 1.The Notice of Motion dated 5th November, 2021 is dismissed
- 2.Costs of the application to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time); the motion's invocation of 'Order 50 of the Constitution' was corrected to Article 50 of the Constitution, and sections 1A, 1B, 3A and 3B of the Civil Procedure Act were held inapplicable to this Court
Relief refused
#Leave to file the memorandum of appeal out of time
The delay was not candidly explained; the advocate who filed the application was the same one who pursued compliance with the judgment, and the 1st respondent had already satisfied the decree
Deeming of the notice of appeal dated 26th June, 2021 as properly filed and served
The application was found to lack merit and the applicant came to equity with unclean hands
Costs
The application was dismissed with costs to the 1st respondent
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.
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.
This conduct on the part of the applicant gives rise for an adverse inference drawn against them that they were economical with the truth in their supportive facts bordering on lack of candidness on their part.
It may also means coming to seek equity with unclean hands which in my view would disentitle the applicant to the relief sought.
The upshot of the above assessment and reasoning is that I find no merit in this application. It is accordingly dismissed with costs to the 1st respondent.
Issues in the judgment
#The judgment labels the cases Richard Nchapi Leiyagu, Mbaki and Abbas Sherally as authority cited by the court, yet they are discussed as the applicant's constitutional right to be heard material; the treatment labels 'considered' are used as a middle category not in the strict enum, since the court merely revisited the threshold and found nothing requiring relief
The motion's heading cites 'Order 50 of the Constitution', an erroneous provision reference acknowledged by the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitany v Chief of Staff and Head of Public Service & 2 others (Civil Application E387 of 2021) [2022] KECA 138 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 5th November, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/138/eng@2022-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.