David Kiarie Karumbo v Kuria Kanyingi [2001] KECA 336 (KLR)
The bottom line
#Kenya's Court of Appeal revived a stalled appeal, ruling that delay counts from when the earlier appeal was struck out, not the original judgment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for extension of time was brought after inordinate delay.
- 2.Whether the applicant offered a satisfactory explanation for the omissions that led to his earlier appeal being struck out, and whether his ignorance of the law in mounting a valid appeal should be excused.
- 3.Whether the respondent would suffer prejudice - through harassment, personal vendetta, political overtures or the expense of litigation - if time were extended.
- 4.Whether the single Judge's discretion under rule 4 should be exercised in favour of extending time for filing the Notice of Appeal and lodging the Record of Appeal.
Key legal issues
#Whether the application for extension of time was brought after inordinate delay.
No inordinate delay. Although the decision sought to be appealed was delivered on 22nd January 1999, the application was filed on 27th July 2001, shortly after the applicant's earlier appeal (Civil Appeal No. 275 of 2000) was struck out on 10th July 2001; delay is therefore measured from the striking out, and the plea of laches and indolence failed.
The Judge identified the event from which delay in the fresh application must be measured. Although the decision sought to be appealed was delivered on 22nd January 1999, the applicant had in the meantime lodged Civil Appeal No. 275 of 2000, which was struck out on 10th July 2001 as defective for being lodged out of time without leave. The application to resurrect the appeal was filed on 27th July 2001, shortly after the striking out. Measured from that event, the application was brought without delay, and the respondent's plea of laches and indolence failed.
Whether the respondent's allegations of indolence, laches, ignorance of the law, harassment, political motivation and expense should defeat the application.
The Judge sympathised with the respondent but held that those matters were not for decision at the extension-of-time stage; the respondent's protection is that costs will compensate him if he ultimately wins.
Counsel for the respondent argued that the applicant was indolent and guilty of laches, that his ignorance of the law in mounting a valid appeal should not be excused, and that the intended appeal was a vehicle for harassment and personal vendetta with political overtures, and was expensive. The Judge accepted that no citizen should be dragged through endless vexatious litigation and that expensive litigation should not be superimposed on an innocent citizen, but held that he could not, and was not required to, decide those matters on the application; the respondent's protection lay in costs if he ultimately won.
Whether the omissions that caused the earlier appeal to be struck out were satisfactorily explained.
Yes. Counsel for the applicant, Hon. Karua, candidly explained the omissions which resulted in the appeal being struck out, and the Judge saw no need to rehash them; ignorance of the law did not therefore defeat the application.
The earlier appeal, Civil Appeal No. 275 of 2000, had been struck out on 10th July 2001 as defective because it was lodged out of the prescribed time without the requisite leave. In answer to the submission that the applicant's ignorance of the law in mounting a valid appeal should not be excused, the Judge accepted that counsel for the applicant, Hon. Karua, had candidly explained the omissions which resulted in the appeal being struck out. That candid explanation, together with the absence of inordinate delay, grounded the exercise of the rule 4 discretion in the applicant's favour.
Whether the discretion under rule 4 should be exercised in favour of the applicant.
Yes. The applicant had clearly expressed his wish to have the dispute canvassed in the Court of Appeal, there was no inordinate delay, and the Judge had no good reason to deny him his undoubted right of appeal; the discretion was exercised in his favour.
Weighing the applicant's explanation and expressed desire to pursue the appeal against the respondent's opposition, the Judge found no inordinate delay and no good reason to deny the applicant his undoubted right to have the dispute between him and the respondent canvassed in the Court of Appeal. He therefore exercised his discretion in the applicant's favour, extending time for filing the Notice of Appeal by 7 days from 6th December 2001 and for lodging the Record of Appeal by 21 days from the date of filing the Notice of Appeal, with the costs of the application in the intended appeal.
Legal principles established
#- In an application to extend time to appeal, inordinate delay in bringing the application is measured from the event that made the application necessary - here, the striking out of the earlier defective appeal - and not from the date of the underlying decision sought to be appealed.
- At the extension-of-time stage the court is not required to determine allegations that the intended appeal is vexatious, politically motivated or expensive; the respondent's protection lies in an award of costs if he ultimately succeeds.
- Where the applicant clearly expresses the wish to have the dispute canvassed on appeal, his counsel candidly explains the omissions that caused the earlier appeal to fail, and there is no good reason to deny him, the undoubted right of appeal prevails and the discretion is exercised in his favour.
Court orders
#- 1.Application allowed; time extended for filing the Notice of Appeal by 7 days from 6th December 2001 (the date of the ruling).
- 2.Time extended for lodging the Record of Appeal by 21 days from the date of filing the Notice of Appeal.
- 3.Costs occasioned by the application to be in the intended appeal in any event.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules - the discretion of a single Judge of Appeal to extend time for filing a Notice of Appeal and lodging a Record of Appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, I allow the application and extend time for filing the Notice of Appeal by 7 days from to-day and for lodging the Record of Appeal by 21 days from the date of filing the Notice of Appeal.
The costs occasioned by this application shall be in the intended appeal in any event.
This application was filed on 27th July, 2001, so in effect it cannot be said that there was inordinate delay in bringing it with a view to resurrecting the desired appeal.
True, no citizen of this country should be dragged through an endless vexatious litigation.
the respondent should take solace that if he wins he will be compensated for in costs at the end of the day.
I do not have any good reason to deny him his undoubted right.
Issues in the judgment
#The respondent is never named in the judgment; the respondent appears only through counsel ('Mrs. Ndungu, counsel for the respondent'), so the respondent cannot be fully identified from the judgment text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kiarie Karumbo v Kuria Kanyingi [2001] KECA 336 (KLR)", Case Analysis (2001). Not stated in the judgment (intended appeal: Civil Appeal No. 275 of 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/336/eng@2001-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.