E C N G v F N N
Court of Appeal, at Nairobi June 25, 2004
Ringera Ag JA (In Chambers)
Civil Application No NAI 294 of 2003
(An application for extension of time to file and serve notice and record of appeal from a judgment and decree of the High Court of Kenya at Nairobi (Aganyanya, J) dated 5th July, 2001 in HCDC No 143 of 1999)
Judicial Discretion- exercise of judicial discretion- exercise of the discretion by the Court of Appeal to extend the time for filing appeal - nature of such discretion- how the discretion should be exercised – factors considered by the court in exercise of the discretion- applicable principles- Court of Appeal Rules (cap 9 Sub Leg) rule 4.
Civil Practice and Procedure- extension of time- application for extension of time to file appeal- discretion of the court in such application- applicable principles- Court of Appeal Rules (cap 9 Sub Leg) rule 4.
Civil Practice and Procedure - appeal- record of appeal- documents contained in the record- whether it is mandatory to include certified copy of decree in the record- Court of Appeal Rules (cap 9 Sub Leg) rule 85 (1)(h).
Advocate- mistake of advocate- failure of advocate to include certified copy of decree in record of appeal- whether such mistake may be visited on the client.
The appellant’s appeal had been struck out by the Court on its own motion, for failure to include a primary document in the record of appeal. He subsequently filed for an extension of time to lodge and serve a fresh notice of appeal and record of appeal. The appellant’s counsel admitted that he had made a mistake by not including the order appealed from in the record of appeal, but prayed that his mistake should not be visited on his client.
The respondent opposed the application contending that the discretion of the Court under rule 4 of the Court of Appeal Rules should only be exercised if the application for extension of time is filed without delay. In this case, there had been a delay of 20 days. Moreover, for the Court to act on the basis of a mistake, that mistake must be acknowledged and explained in the supporting affidavit. There was no such acknowledgment or explanation in this case. Lastly, the respondent argued that the court should not act in vain as the intended appeal had no merit. The Superior court judge had appreciated the standard of proof and found no merit in the petition.
1. Under rule 4 of the Court of Appeal Rules, the Court is vested with a perfectly clear and unfettered discretion to extend the time limited by the Rules or its own decisions.
2. The Court’s discretion under rule 4 of the Court of Appeal Rules, like all judicial discretions, is to be exercised judicially, that is to say, on sound reason rather than whim, caprice or sympathy.
3. In the exercise of its discretion, the Court’s primary concern should be to do justice to the parties. The Court should, among other things, consider: -
- the length of the delay in lodging the notice and record of appeal;
- where applicable, the delay in lodging the application for extension of time, as well as the explanation thereof;
- whether or not the intended appeal is arguable;
- the prejudice to the respondent if the application is granted;
- the public importance, if any, of the matter; and
- generally the requirements of the interest of justice in the case.
4. Rule 85 (1)(h) of the Court of Appeal Rules makes it mandatory for the record of appeal to contain the certified copy of the decree or order appealed against.
5. Mistakes by counsel are not a reason for denying an otherwise deserving applicant of a favourable exercise of discretion.
1. Titus, George Roine & another v John P Nangurai Civil Application No NAI 249 of 1998
2. Mwai v Wanaina (No 2)  KLR 33
3. Muraria John Ongeri & others v Paul Matundura Civil Application No NAI 301 of 2003
4. Mutiso, Leo Sila v Rose Hellen Wangari Mwangi Civil Application No NAI 251 of 1977
5. Grindlays Bank International (K) Ltd & another v George Barloor Civil Application No NAI 257 of 1995
6. Murai v Wainaina (No 4)  KLR 38
Court of Appeal Rules (cap 9 Sub Leg) rules 4, 81(1); 85(1) (h)
Mr Kabaka for the applicant
Mr P N Ndungu for the respondent