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Court of AppealDismissedCivil Application No. Nai. 000 of 2021

Joreth Limited v Mbugua & 3 others (Civil Application E219 of 2021) [2022] KECA 163 (KLR)

Court of Appeal of Kenya
18 February 2022
2,336 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant couldn't explain part of a nine-month delay and showed no draft appeal grounds.

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 delivered by Nambuye, JA on 18th February 2022, on a notice of motion dated 4th June 2021 seeking leave to file and serve a notice of appeal out of time against the judgment of Okong'o, J of the Environment and Land Court at Nairobi in ELC Case No. 367 of 2012 delivered on 24th September 2020. The applicant attributed the delay to the Covid-19 pandemic, claiming it only learned of the judgment in May 2021 when its advocates' offices had closed. The respondents countered that the applicant's advocate knew of the judgment date, was served with their review application by email on 9th March 2021, and failed to account for the delay thereafter. Invoking sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, the court applied the Salat parameters: length of delay, reason for delay, arguability and prejudice. It found a nine-month delay, of which three months and fifteen days went unexplained and unrebutted; no draft memorandum of appeal or grounds were traced, undermining arguability; and the right to be heard is not granted as a matter of course without demonstrated seriousness. The application was dismissed with costs to the 1st and 2nd respondents. The decision below was not disturbed, as this was an interlocutory application, not the appeal itself.

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 should be granted leave to file and serve a notice of appeal out of time against the judgment of the ELC delivered on 24th September, 2020
  2. 2.Whether the length of the delay (nine months) was excusable
  3. 3.Whether the applicant gave a reasonable explanation for the delay
  4. 4.Whether the intended appeal is arguable
  5. 5.Whether the respondents would suffer prejudice if extension were granted

Key legal issues

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01

Whether the applicant accounted for the whole period of delay

Holding

The applicant failed to explain the delay from 9th March, 2021 (when served with the respondents' application for review of the very judgment) to the filing of the application on 24th June, 2021, demonstrating lack of seriousness

Reasoning

The respondents' assertion that their advocate knew of the judgment date and was served with a review application on 9th March, 2021 was unrebuted. The court accepted the respondents' version, holding that the three months and fifteen days of unexplained delay showed lack of seriousness in pursuing the intended appeal.

p. 4
02

Whether the intended appeal was arguable

Holding

The applicant traced no draft memorandum of appeal or grounds of appeal on the record, undermining arguability even though the threshold is a mere possibility

Reasoning

Although arguability requires only a possibility, the court found no draft memorandum of appeal and no grounds set out in the application or supporting affidavit. This further evidenced the applicant's lack of seriousness and weighed against the exercise of discretion under Rule 4 of the Court of Appeal Rules.

p. 4
03

Whether the right to be heard entitled the applicant to extension of time as of course

Holding

No; the constitutional right to be heard does not translate into an automatic right to extension of time; seriousness of pursuit must be demonstrated

Reasoning

Relying on Leiyagu, Mbaki and Abbas Sherally on the sanctity of the right to be heard, the court held that nothing in that jurisprudence suggests the right to be heard on appeal is granted as a matter of course. The applicant's demonstrated lack of seriousness disentitled it to the discretionary relief sought.

p. 5

Legal principles established

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  • Extension of time is not a right but an equitable remedy available to a deserving party at the discretion of the court, and the factors are considered conjunctively
  • The right to be heard on appeal must be pursued with demonstrated seriousness; it is not accorded as a matter of course

Court orders

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  1. 1.The notice of motion dated 4th June, 2021 is dismissed
  2. 2.Costs of the application awarded to the 1st and 2nd respondents

The bench

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

majority

Wrote the judgment

On appeal from
Environment and Land Court, Nairobi
ELC Case No. 367 of 2012
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9, and Rule 4 of the Court of Appeal Rules

Relief refused

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Leave to file and serve a notice of appeal out of time

Unexplained delay of three months and fifteen days, absence of a draft memorandum of appeal or arguable grounds, and lack of seriousness demonstrated in pursuit of the appellate right

p. 5

Costs

Application dismissed with costs to the 1st and 2nd respondents

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 upshot of the above assessment and reasoning is that I find no merit in the application. It is accordingly dismissed with costs to the 1st and 2nd respondents.
p. 5Final orders and disposition
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. 3Discretionary nature of extension of time
There must be demonstration of seriousness in the pursuit of such right by an applicant before the same can be accorded, which is lacking herein.
p. 5Right to be heard and seriousness of pursuit
It therefore follows that the applicant has not accounted for the three (3) months and fifteen (15) days delay in seeking the court's intervention.
p. 4Obligation to account for every period of delay

Issues in the judgment

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minor

The written submissions of the applicant are dated 3rd February, 2020, which predates the notice of motion dated 4th June, 2021 it supports; likely a typographical error in the judgment

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, "Joreth Limited v Mbugua & 3 others (Civil Application E219 of 2021) [2022] KECA 163 (KLR)", Case Analysis (2022). Civil Application No. Nai. 000 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/163/eng@2022-02-18

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