Joreth Limited v Mbugua & 3 others (Civil Application E219 of 2021) [2022] KECA 163 (KLR)
The bottom line
#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
#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 a notice of appeal out of time against the judgment of the ELC delivered on 24th September, 2020
- 2.Whether the length of the delay (nine months) was excusable
- 3.Whether the applicant gave a reasonable explanation for the delay
- 4.Whether the intended appeal is arguable
- 5.Whether the respondents would suffer prejudice if extension were granted
Key legal issues
#Whether the applicant accounted for the whole period of delay
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
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.
Whether the intended appeal was arguable
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
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.
Whether the right to be heard entitled the applicant to extension of time as of course
No; the constitutional right to be heard does not translate into an automatic right to extension of time; seriousness of pursuit must be demonstrated
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 4th June, 2021 is dismissed
- 2.Costs of the application awarded to the 1st and 2nd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
Application dismissed with costs to the 1st and 2nd respondents
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.
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.
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.
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.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.