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Court of AppealAllowedNot stated in the judgment· [2023] KECA 923 (KLR)

Premji v Patel & another (Civil Appeal (Application) E328 of 2022) [2023] KECA 923 (KLR)

Court of Appeal of Kenya
28 July 2023
FSF. Sichale
1,193 words in judgment
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The bottom line

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Kenya's Court of Appeal excused a two-day late appeal filing, confirming short delays with honest explanations won't kill your appeal.

What this practically means

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Executive summary

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This was an application under Rule 4 of the Court of Appeal Rules seeking extension of time to file a Notice of Appeal, heard by Sichale, JA at Nairobi. Odero, J. of the High Court delivered judgment on 14th April, 2022. The applicants, dissatisfied, prepared a Notice of Appeal dated 28th April, 2022 but filed it on 6th May, 2022 - two days outside the 14-day period. Counsel attributed the delay to a miscalculation of working days given the many public holidays in April and May 2022, including the 4-day Easter holiday, the State funeral for the late Hon. Mwai Kibaki, and Labour Day. The respondent opposed, contending the applicants failed to exercise due diligence, that the delay was inordinate, that the litigation had already run for over five years, and that the motion was filed only in response to his own application dated 2nd June, 2022 seeking to strike out the Notice of Appeal. The applicants relied on County Government of Mombasa v Kooba Kenya Ltd and Karny Zaharya v Shalom Levi; the respondent relied on Ngunjiri v Mbugua and the Supreme Court's Salat principles. The court found the two-day delay excusable and not inordinate, allowed the motion, deemed the Notice of Appeal duly filed, and made no order as to costs.

Key legal issues

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01

Whether a two-day delay in filing a Notice of Appeal constitutes inordinate delay warranting refusal of extension of time under Rule 4

Holding

The delay of two days, attributable to a miscalculation of working days because of numerous public holidays in April and May 2022, was an excusable mistake and not inordinate; the extension was granted.

Reasoning

The court applied the Salat principles governing extension of time: the delay must be explained to the satisfaction of the court and prejudice to the respondent weighed. The applicants explained the two-day delay as a miscalculation of working days given the Easter holiday, the State funeral for the late Hon. Mwai Kibaki and Labour Day. The court found this an excusable mistake, noting the applicants believed their Notice had been lodged within time, and held that a two-day delay cannot be inordinate. The motion was allowed with no order as to costs.

p. 3

Legal principles established

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  • A short delay of two days in filing a Notice of Appeal, where satisfactorily explained, is not inordinate and may be excused under Rule 4 of the Court of Appeal Rules.

Court orders

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  1. 1.Extension of time for filing of the Notice of Appeal granted
  2. 2.The Notice of Appeal dated 28th April, 2022 but filed on 6th May, 2022 deemed as duly filed
  3. 3.No order as to costs
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Premji v Patel & another (Civil Appeal (Application) E328 of 2022) [2023] KECA 923 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/923/eng@2023-07-28

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