HUNTER GITHUA v BENARD CHEGE GACHERU
The bottom line
#Kenya's Court of Appeal refused to excuse a late appeal because the applicants relied on unproven verbal settlement talks instead of following the appeal rules.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to the proviso to rule 81 of the Court of Appeal Rules
The applicants were not entitled to the benefit of the proviso because their letter requesting proceedings was not copied to the respondents and no certificate of delay was issued
The notice of appeal was filed in time on 27 June 2005 and a letter requesting proceedings was written the same day, but it was not copied to the respondents and no certificate of delay issued. Without compliance with these requirements the applicants could not invoke the proviso to rule 81 to extend the 60-day period for lodging the record.
Adequacy of the explanation for the delay
The delay of about two and a half months was inadequately explained because the alleged settlement negotiations were denied and unproven
The applicants attributed the delay to verbal negotiations for an amicable settlement. These were flatly denied on affidavit by the 4th respondent. The court could not determine who was telling the truth; the burden of proving the negotiations rested on the applicants and was not discharged, so the delay was treated as inadequately explained.
Prejudice to the respondents
The applicants would not be unduly prejudiced by having to comply with the judgment below and hold elections under the church constitution
The court considered the consequence of refusal: the applicants would simply fall back on conducting elections in compliance with the constitution of the Heroes of Faith Christian Fellowship Church as ordered by Ang'awa J, which would not cause them undue prejudice.
Legal principles established
#- A party who fails to copy a letter requesting proceedings to the respondents is not entitled to the benefit of the proviso to rule 81 and cannot rely on a certificate of delay
- Reliance on unrecorded verbal settlement negotiations as an explanation for delay is a risky strategy; the burden of proving such negotiations lies on the party asserting them
Court orders
#- 1.The application for leave to file the record of appeal out of time is dismissed
- 2.Costs of the application to be borne by the applicants
- On appeal from
- High Court of Kenya at Nairobi
- H.C.MISC.C. NO. 90 OF 2004
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time / leave to file record of appeal out of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "HUNTER GITHUA v BENARD CHEGE GACHERU", Case Analysis (2006). Civil Application No. 314 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/286/eng@2006-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.