African Airlines International Ltd v Eastern

& Southern African Trade & Development

Bank (PTA BANK)

Court of Appeal, at Nairobi March 7, 2003

Lakha, Owuor & Keiwua JJ A

Civil Application No NAI 50 of 2002 (UR. 29/2002)

(Application for extension of time to file Notice of Appeal and Record of

Appeal in an intended appeal from Ruling of the High Court at

Nairobi (Hewett J) dated 20th April 2000 in High Court Civil Case

No 1361 of 1999)

Civil Practice and Procedure - extension of time - time to file appeal – court’s discretion – how that discretion ought to be exercised – when the discretion of a single appellate judge may be interfered with – factors considered in deciding how to exercise such discretion – whether court is required to determine prospects of success of the intended appeal before allowing an extension of time.

Civil Practice and Procedure - review - application for review – jurisdiction of the court to hear a review application – whether the court can hear a review application although an appeal is pending – whether jurisdiction of the court to hear review is taken away where a party files an appeal after the review petition – whether an application for review can be granted after an appeal is heard.

There was a loan agreement between the parties secured by the defendant’s property. Upon failure to repay, the plaintiff sought to exercise the statutory power of sale. The court decided in favour of the plaintiff. The defendant considered the desirability of appeal but instead filed an application for review which was dismissed.

The defendant applied for leave to extend time to file Notice of Appeal and Record of Appeal. The application was dismissed by a single judge on the basis that there was a long delay. The defendant then sought to have the decision of the single judge reversed by way of a reference under rule 54(1)(b) of the Court of Appeal Rules.

Held:

1. The discretion to extend time is unfettered and should be exercised flexibly with regard to the facts of the particular case.

2. A court will not interfere with the exercise of the discretion of an inferior court unless it is satisfied that the decision is clearly wrong.

3. Exercise of an inferior court’s discretion may be deemed to be wrong where that court misdirected itself or it acted on matters on which it should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.

4. All relevant factors must be taken into account in deciding how to exercise the discretion to extend time; these factors include:-

a) the length of the delay;

b) the reasons for the delay;

c) whether there is an arguable case on the appeal; and

d) the degree of prejudice to the defendants if time is extended.

5. There is no invariable rule which requires the court to determine whether or not there is a good arguable case on appeal in an application to extend time. It is not desired that on every application to extend time there should be a pre-appeal hearing in order to consider what the prospects of success are.

6. In some cases it may be material to have regard to the merits of the appeal because it may be wrong, and indeed an unkindness to the appellant himself, to extend his time for appealing to enable him to pursue a hopeless appeal.

7. Where an application for review is presented before an appeal is preferred the court has jurisdiction to hear it although the appeal is pending.

8. The court’s jurisdiction to hear a review is not taken away if after the review petition, an appeal is filed by any party.

9. An appeal may be filed after an application for review, but once the appeal is heard the review cannot be proceeded with

Reference allowed.

Cases

Mbogo v Shah [1968] EA 93

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rule 54(1)(b)

Texts

Sarkar’s Law of Civil Procedure, Eighth Edition Vol 2 page 1592

Advocates

Mr Kang’ethe for the Respondent