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Court of AppealAllowedCivil Application No. NAI. 332 of 2004 (Nyr. 32/04)· [2005] KECA 340 (KLR)

Fakir Mohamed v Joseph Mugambi, Wilson Mwongera & Henry Stephano Kithinji

Court of Appeal
10 June 2005
PWP.N. Waki
2,930 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave a litigant more time to file an appeal, confirming that a notice of appeal is not automatically withdrawn just because deadlines pass.

What this practically means

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Executive summary

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This is a ruling by Waki JA, sitting in chambers at Nyeri, on an application under Rule 4 of the Court of Appeal Rules for extension of time to file a record of appeal out of time. The intended appeal challenges the quantum of damages of Shs.708,940 awarded by Kasanga Mulwa J in a road traffic accident case, liability having been compromised by consent. The applicant explained the delay through an uncontroverted affidavit detailing delays in obtaining proceedings and the decree. The 1st respondent opposed, arguing prejudice from a 17-year-old cause of action, one respondent in liquidation, and - critically - that the notice of appeal had been deemed withdrawn under Rule 82(a). The judge found no culpable delay, held that the period since 1989 was irrelevant because it had been considered when leave to file the notice of appeal was granted, and rejected the oppression argument. On Rule 82(a), the judge surveyed conflicting authorities - Kamau Kibunja (automatic withdrawal), Bullion Bank and Dolphin Palms (no automatic withdrawal; full bench required), and K & K Amman - and, unable to overrule the full Court, followed the Dolphin Palms construction that the court must be moved by a full bench to declare a notice deemed withdrawn. Automatic withdrawal, he reasoned, would make nonsense of Rule 81's certificate-of-delay mechanism. The application was granted as prayed, with the record to be filed and served within 14 days and costs in the intended appeal. The judge urged the Rules Committee to resolve the uncertainty around Rule 82(a).

Key legal issues

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01

Whether there was culpable delay by the applicant or his counsel

Holding

No culpable delay; the uncontroverted affidavit explanation, including the certificate of delay, satisfied the court.

Reasoning

The supporting affidavit of the applicant's advocate explained the sequence of events from judgment to the filing of the application, including delays in obtaining proceedings and the decree. The facts were unchallenged by affidavit, and counsel for the 1st respondent conceded the facts were not disputed. The court was therefore satisfied with the explanation and found no culpable delay.

p. 3
02

Whether the 17-year period since the suit was filed counts as delay for this application

Holding

That period was irrelevant; it must have been considered when leave to file the notice of appeal out of time was granted.

Reasoning

The court held that the long period between filing the suit in 1989 and the notice of appeal in 2004 could not be revisited in the Rule 4 application because it must have been taken into account when the High Court granted leave to file the notice of appeal out of time. Nothing showed the applicant contributed to that delay.

p. 3
03

Construction of Rule 82(a) - whether a notice of appeal is automatically deemed withdrawn

Holding

No automatic withdrawal; the court must be moved by a full bench under Rule 80 to declare the notice deemed withdrawn. The court followed the Dolphin Palms line of authority.

Reasoning

The single judge surveyed conflicting decisions: Kamau Kibunja (automatic withdrawal), Bullion Bank and Dolphin Palms (no automatic withdrawal, full bench required), and K & K Amman. Holding that automatic withdrawal would make nonsense of Rule 81's certificate-of-delay provision, and that he could not overrule the full Court's construction, he followed the Dolphin Palms construction and urged the Rules Committee to end the uncertainty.

p. 5

Legal principles established

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  • The factors for extension of time under Rule 4 are unfettered and non-exhaustive, including period and reason for delay, chances of success, prejudice to the respondent, effect on public administration, compliance with time limits, resources of parties and public importance.
  • Rule 82(a) does not automatically deem a notice of appeal withdrawn; the court must be moved, by a full bench under Rule 80, to make such an order.
  • A single judge cannot validly deem a notice of appeal to have been withdrawn; that is a province of a full bench.

Court orders

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  1. 1.The objections raised by the 1st respondent's counsel are overruled
  2. 2.The application for extension of time to file the record of appeal is granted as prayed
  3. 3.The record of appeal shall be filed and served within 14 days
  4. 4.Costs of the application shall be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 81
  • Court of Appeal RulesRule 82(a)
  • Court of Appeal RulesRule 80
  • Court of Appeal RulesRule 85(1)(j)
  • Court of Appeal RulesRule 52(b)

Cases cited (10)

  • Mutiso vs Mwangi
    Civil Appl. NAI. 255 of 1997 (ur)

    Non-exhaustive factors for extension of time under Rule 4

  • Mwangi vs Kenya Airways Ltd
    [2003] KLR 486

    Non-exhaustive factors for extension of time under Rule 4

  • Major Joseph Mwereri Igweta vs Murika M'Ethare & Attorney General
    Civil Appl. NAI. 8/2000 (ur)

    Non-exhaustive factors for extension of time under Rule 4

  • Murai v Wainaina (No 4)
    [1982] KLR 38

    Non-exhaustive factors for extension of time under Rule 4

  • Kamau Kibunja v Noordin Construction (k) Ltd
    C.Appl. NAI. 172/88 (UR)

    Majority holding that Rule 82(a) makes withdrawal of a notice of appeal mandatory/automatic

  • Bullion Bank Ltd v Fulchand Manek & Brothers
    Civil Appl. NAI 239/97 (ur)

    Single judge view that a notice cannot be deemed withdrawn without a court order

  • Dolphin Palms Ltd vs Al-Nasibh Trading & Co. Ltd & 2 others
    Civil Appl. NAI. 112/99 (UR)

    Single judge and full Court holding that deeming a notice withdrawn requires a full bench order

  • Attorney General v. Kamlesh Mansukhlal Damji Pattni and 2 Others
    Civil Application No. NAI.59 of 1999 (unreported)

    Cited by counsel; held not in point

  • Gibson Mugwe Murathi v. Wangari Kanyiri and Another
    Civil Application No. NAI.343 of 1996 (unreported)

    Cited by counsel; held not in point

  • K & K Amman Ltd vs Mount Kenya Game Ranch & Others
    (2003) 1 EA 106

    Single judge holding that the notice of appeal must be deemed withdrawn under Rule 82(a)

On appeal from
High Court of Kenya at Meru
H.C.C.C. No. 73 of 1989
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time to file a record of appeal out of time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Fakir Mohamed v Joseph Mugambi, Wilson Mwongera & Henry Stephano Kithinji", Case Analysis (2005). Civil Application No. NAI. 332 of 2004 (Nyr. 32/04). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/340/eng@2005-06-10

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