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ENLARGEMENT OF TIME PENDING APPEAL

IN THE CASE OF IMPERIAL BANK LIMITED (IN RECEIVERSHIP) AND ANOTHER
V ALNASHIR POPAT & 18 OTHERS (2018) EKLR.
DELIVERED ON 23RD MARCH, 2018.
Parties: Imperial Bank Limited (1st Applicant), Kenya Deposit Insurance Corporation (2nd
Applicant) and 1. Alnashir Popat 2. Anwar Hajee 3. Jinit Shah 4. Hanif Mohamed Amiralismji
5. Mukesh Kumar Patel 6. Vishnu Dutia 7. Estate of Abdulmalek Janmohamed 8. Eric Bengi
Gitonga 9. Omurembe Iyadi 10. Christopher Angelo Diaz 11. Imran Limited 12. Janco
Investments Limited 13. Reynolds & Co. Limited 14. East African Motors Industries (Sales &
Services) Limited 15. Momentum Holdings Limited 16. Abdulmal Investments Limited 17.
Kenblest Limited 18. Rex Motors Limited 19. The Central Bank of Kenya (Respondents).
Citation: Civil Appeal (Application) NO. 395 OF 2017.
Court: In the Court of Appeal at Nairobi.
Coram: M’inoti, J.A. (in chambers).
Counsel: Mr. Murgor and Mr. Ouma (for the Applicants), Mr. Chege (for the 19 th Respondent),
Mr. Oduor (for parties likely to be affected by the appeal), Mr. Wandabwa (for the 11 th to 17th
Respondents) who held brief for Terry Mwongo (for the 1 st, 2nd, 3rd, 4th, 5th, 6th, 8th and 9th
Respondents) and Mr. Busaidy (for the 7th and 12th Respondents.
Facts:
The applicants together with the 19th respondent filed a suit in the High Court on 30 th September,
2016 after the 1st applicant was placed under receivership on 13th October, 2015. It was against
the other respondents being directors or shareholders of the 1 st applicant. The applicants pleaded
that through fraud, theft, money laundering, fraudulent false accounting, bribery, corruption,
diversion of funds, negligence and breach of fiduciary duty, the said respondents had, in the
management and conduct of the affairs of the 1st applicant, occasioned loss of assets and
deposits held from members of the public, running into billions of Kenya shillings. They
accordingly prayed for judgment for Kshs 44.9 billion and transfer to the 1st applicant of shares
held by some of the respondents in various companies.
The respondents entered appearance and filed defences as well as a counterclaim by the 11th,
13th, 14th, 15th, 16th and 17th respondents. On or about 26th October 2016, the 1st applicant
applied for an order to prohibit an advocate, Njoroge Nani Mungai, and two law firms,
Ahmednassir Abdikadir & Company Advocates and Coulson Harney Advocates, from acting for
their respondent clients, as well as an order expunging from the record documents filed by the
two law firms. The prayers sought were on the basis that the said advocate and law firms
suffered conflict of interest, held or were privy to the 1st applicant’s confidential information,
which they could use to its detriment or prejudice, and were in any event potential witnesses in
the suit.

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Tuiyott J. heard and dismissed the application by a ruling dated 13th January, 2017, the subject of
Civil Appeal No. 395 of 2017. Aggrieved by the ruling, the applicants filed a notice of appeal on
24th January 2017 and on 26th April 2017 the High Court stayed further proceedings pending
the hearing and determination of the applicant’s intended appeal. Ultimately the applicants filed
the record of appeal on 24th November 2017, which was done out of time.
Issues for determination:
M’inoti, J.A. identified the following issues for determination:
i. Whether there was a valid notice of appeal on record or whether it was deemed as
withdrawn.
ii. Whether the applicant’s letter dated 17th January, 2017 amounts to an application for
proceedings within the meaning of rule 82 Court of Appeal Rules, 2010.
iii. The merits of the application.
iv. The extent of delay and the reason therefore.
Holding:
i. Whether there is a valid notice of appeal on record or whether it is deemed as withdrawn
is a matter of a full court and not a single judge.
ii. The applicant’s letter dated 17th January, 2017 amounts to an application for proceedings.
iii. The merits of an appeal are strictly reserved for a full court.
iv. The delay of 10 days was reasonable and the explanation for the delay plausible.
Reasoning:
i. Whether there was a valid notice of appeal on record or whether it was deemed as
withdrawn.
The learned Judge came to the conclusion that issues pertaining to a valid notice of
appeal were not within his jurisdiction, as a single judge, but that of a full court. He was
guided by rule 53 of the Court of Appeal rules (2010) and made reference to Dolphin
Palms Ltd v. AlNasibh Trading Co. Ltd & Others, CA No. 112 of 1999 in which the
single judge, Omolo JA emphasized that it was unheard of a single judge of the court to
validly deem a notice of appeal as withdrawn and then proceed to act as if there were no
notice of appeal. He further went ahead to interpret Rule 82(supra) as requiring the
discretion of a court upon application by a party. An application, to that effect, was
already made to a full court in the present case.

ii. Whether the applicant’s letter dated 17th January, 2017 amounts to an application for
proceedings within the meaning of rule 82 Court of Appeal Rules, 2010.
The learned judge came to the conclusion that in the absence of any prescribed form, a
party can apply for proceedings in any form so long as the mode of application meets the
conditions set by the rule, namely it has to be made within 30 days of the decision
intended to be appealed, it has to be in writing, and it must be served upon the
respondents. The application in question was in writing and leaves no doubt that the

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applicants were applying for proceedings (photocopies) for purposes of preparing a

record of appeal. It was made on the same day that the ruling was delivered and was duly
copied to the respondents’ advocates. He took that to amount to service as none of the
respondent contended that they were not served with a copy of the application.

iii. The merits of the application.

The merits of the application go to the grounds for appeal that are a preserve for a full
court. The Learned Judge nonetheless stated that the appeal was not frivolous, a waste of
the court’s time, involved substantial sums of money and was a matter of great public
interest due to the conflict of interest on the part of advocates and legal advisers. He
further commented that even the High Court recognized the merit of the appeal by
staying further proceedings to allow the applicants’ time to file for appeal despite having
dismissed their application.

iv. The extent of delay and the reason therefore.

M’inoti J.A. came to the conclusion that the delay was reasonable and the reasons for it
plausible. This followed applicants’ interpretation of the letter dated 23rd May, 2017 as
being addressed to Wandabwa & Co. Advocates and not to themselves. It is in the same
train of thought that they followed up on their application for proceedings on 13 th
September, 2017 after which the Deputy Registrar replied stating that the proceedings
were ready for collection on 25 rd September, 2017. This was followed up with a
certificate of delay from the office of the Deputy Registrar confirming that the
proceedings were only ready for collection on the 25 th of September, 2017 rather than 23rd
May, 2017 as stated by the respondents.

In the same breath, the court declined to ignore the certificate of delay as no evidence of
forgery was presented. The learned Judge relied on the case of Michael Mwalo v Board
of Trustees National Social Security Fund (2014) Eklr.
It is upon the premise of the certificate of delay that the court determined the delay to be
by ten days.

The court found the reasons for delay to be plausible given the grounds for further
correction of the proceedings, the bulk of the record of appeal and the 20 copies of the
same to be prepared for the court and the 19 respondents.
Ruling.
The Court of Appeal gave the following orders on 23rd March, 2018:
i. It allowed the application and extended the time;
ii. Ordered that the applicants’ appeal filed on 24th November, 2017 be and deemed to have
been filed on time.
iii. The costs of the application would follow the outcome of the appeal.

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Grounds for enlargement of time.

Listed below are some of the considerations taken in determining whether to grant an order for
enlargement of time. The reason the word ‘some’ is used will be explained after the listing.
i. The length of delay involved;
ii. The reason for the delay;
iii. The possible prejudice, if any, which each party stands to suffer depending on how the
court exercises its discretion;
iv. The conduct of the parties;
v. The need to balance the interests of a party who has a decision in his or her favour against
the interest of a party who has a constitutionally underpinned right of appeal;
vi. The need to protect a party’s opportunity to fully agitate its dispute, against the need to
ensure timely resolution of disputes;
vii. The public interest issues implicated in the appeal or intended appeal; and
viii. Whether, prima facie, the intended appeal has chances of success or is a mere frivolity.
The Judge, in his wisdom and interpretation of the law, cautions that the grounds for enlargement
of time are not limited to those listed above but differ from one case to another. Limiting the
considerations, in his view, amounts to defeating the discretion given to courts. The opinion was
supported by the case of Mongira & Another v Makori & Another [2005] 2 KLR.
In the case in hand all the above listed considerations were addressed but for the last one as it
falls outside the purview of the learned judge’s discretion.
As for the other factors, M’inoti J.A. determined the delay involved to be of 10 days and the
reasons for the delay as sensible. The reasons were that time taken in effecting corrections to the
proceedings and preparing the voluminous record of appeal, which runs to 6 volumes and 2,557
pages and service of the same to 19 parties and the court that required making 33,505 copies of
size A4 papers.
To address any possible prejudice, the court ordered that the appeal be listed for hearing and
determination on priority basis and without further delay.
The next issue was that of the conduct of the parties. The Judge found no fault with the conduct
of the applicants. In his opinion, the request made for proceedings on 17 th January, 2017, the
follow up letter of 13th September, 2017, the reply to the latter letter stating that the proceedings
were ready for collection on 25th September, 2017 and the subsequent certificate of delay
confirming the same was proof of due diligence on the part of the applicants.
The applicants’ right of appeal was upheld, in the opinion of the court, as even the High Court
despite dismissing their application had stayed proceedings pending appeal. In doing so it

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protected the applicants’ right to fully agitate its dispute without fettering the timely resolution of
the dispute as the appeal would be fast-tracked.
Last but not least is public interest. The issues raised as regards conflict of interest on the part of
advocates and legal advisers is considered an issue of public interest. The learned Judge declined
to further comment on the issue as it still fell within the jurisdiction of a full court and delved
into the merits of the appeal.
Conclusion.
In conclusion, there are several grounds that may be considered when determining whether to
grant an enlargement of time as the circumstances of each case vary and curbing the grounds
would be to fetter with the discretion of the Court of Appeal in deciding such matters.