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Court of AppealDismissedCivil Application No. 314 of 2005· [2006] KECA 286 (KLR)

HUNTER GITHUA v BENARD CHEGE GACHERU

Court of Appeal of Kenya
10 March 2006
1,221 words in judgment
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by Deverell JA on an application under rule 4 of the Court of Appeal Rules for leave to file a record of appeal out of time. The intended appeal was from the judgment of Ang'awa J dated 22 June 2005 in H.C.MISC.C. No. 90 of 2004, a dispute over the affairs of the Heroes of Faith Christian Fellowship Church in which the High Court appears to have ordered elections under the church constitution. The applicants filed a notice of appeal in time on 27 June 2005 and wrote for proceedings the same day, but the letter was not copied to the respondents and no certificate of delay was issued, so they could not benefit from the proviso to rule 81. The record should have been lodged within 60 days; the application was instead lodged on 17 November 2005, a delay of about two and a half months. The applicants attributed the delay to verbal settlement negotiations with the respondents, described in detail in the supporting affidavit of Bishop Paul Njoroge. Those negotiations were flatly denied by the 4th respondent on affidavit. The court held that delaying compliance with the Rules on the strength of unrecorded verbal negotiations was a risky strategy, that the burden of proving the negotiations lay on the applicants and had not been discharged, and that the delay was therefore inadequately explained. The applicants would not be unduly prejudiced by holding elections under the church constitution. The application was dismissed with costs to the applicants. The decision below was not disturbed; this ruling concerns only the extension application.

Key legal issues

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01

Entitlement to the proviso to rule 81 of the Court of Appeal Rules

Holding

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

Reasoning

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.

p. 2
02

Adequacy of the explanation for the delay

Holding

The delay of about two and a half months was inadequately explained because the alleged settlement negotiations were denied and unproven

Reasoning

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.

p. 3
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Prejudice to the respondents

Holding

The applicants would not be unduly prejudiced by having to comply with the judgment below and hold elections under the church constitution

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application for leave to file the record of appeal out of time is dismissed
  2. 2.Costs of the application to be borne by the applicants

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 81 (proviso)
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.