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Court of AppealAllowedCivil Application No. Nai. 356 of 1996· [1998] KECA 81 (KLR)

Muchugi Kiragu v 1. James Muchugi Kiragu 2. Henry Thariki Ng'ang'a

Court of Appeal
6 February 1998
JGJ. E. GicheruAAA. M. AkiwumiASA. B. Shah
872 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that poverty is a valid excuse for late filing, allowing an arguable appeal to proceed despite a 44-day delay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Gicheru, Akiwumi and Shah, JJ.A.) on a reference against the decision of Kwach, J.A., sitting as a single judge, refusing the applicant an extension of time within which to lodge an appeal against the judgment of Walekhwa, J. delivered on 13th May 1992 in H.C.C.C. No. 632 of 1980. The applicant filed his Notice of Appeal timeously and applied for copies of the proceedings within time, but the proceedings and judgment were only delivered to him on 5th August 1996, and the Certificate of Delay was not ready for collection until 7th October 1996, two days after the sixty-day period expired. The application for extension was filed on 18th November 1996, a delay of 44 days, attributed in an unchallenged affidavit to the applicant's poverty: he was a pauper who needed a month to raise court and advocates' fees. The Court held that the single judge dealt with the poverty issue peremptorily, referring the applicant to the poor litigants' rules without considering the crucial, unchallenged averment about raising fees. Reiterating that the Rule 4 discretion is unfettered and that it is wrong to shut out an applicant with an arguable appeal where the delay is excusable and the opponent is not prejudiced, the Court allowed the reference, granted an extension of 30 days within which to lodge the record of appeal, and ordered that costs of the application and reference be costs in the intended appeal.

Key legal issues

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01

Exercise of discretion under Rule 4 on extension of time

Holding

The single judge's refusal was set aside because he failed to consider the applicant's unchallenged averment that he needed a month to raise court and advocates' fees, dealing with the poverty issue peremptorily.

Reasoning

The applicant filed his Notice of Appeal timeously and applied for proceedings within time. The Certificate of Delay was only ready two days after the sixty-day period expired. The unchallenged explanation of poverty, requiring a month to raise fees, was not considered by the single judge, who instead referred him to the poor litigants' rules. Had that issue been considered, the judge may have reached a different conclusion, warranting appellate interference with the exercise of discretion.

p. 2
02

Whether the delay was inordinate and prejudicial

Holding

The delay of 44 days was not treated as barring the applicant where the intended appeal was arguable and no prejudice to the respondents was shown.

Reasoning

The Court noted its established practice of granting extension where the intended appeal is arguable, unless the applicant's conduct was inexcusable and the opponent was prejudiced. The respondents opposed only on the length of the period from 7th October to 18th November 1996, but the applicant's averment of poverty as the cause was not challenged, and no prejudice was established.

p. 2

Legal principles established

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  • The discretion under Rule 4 to extend time for lodging an appeal is unfettered and subject only to being granted on terms the Court thinks just; extension may be granted where the intended appeal is arguable and the delay is excusable and non-prejudicial.
  • It is wrong to shut an applicant out of court where the intended appeal is arguable, the delay is excusable and the opponent is not prejudiced.

Court orders

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  1. 1.The applicant's reference succeeds
  2. 2.Extension of 30 days from the date of the ruling within which to lodge the record of appeal
  3. 3.Costs of the application and the reference to be costs in the intended appeal
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 632 of 1980
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (reference against decision of single judge refusing extension of time to appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (22)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muchugi Kiragu v 1. James Muchugi Kiragu 2. Henry Thariki Ng'ang'a", Case Analysis (1998). Civil Application No. Nai. 356 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/81/eng@1998-02-06

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