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Court of AppealDismissedCivil Appli NAI 17 of 2001

S. W. Njuguna & 3 Others v Mataara Tea Factory Co. Ltd & 8 Others

Court of Appeal
24 January 2006
1,034 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a long-abandoned appeal because the applicants could not explain nearly 900 days of delay.

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 amended Notice of Motion dated 27th September 2001 (lodged 12th February 2003) seeking extension of time to file and serve a fresh Notice of Appeal and to file the Memorandum and Record of Appeal in an intended appeal from Githinji J's judgment of 7th June 2000 in H.C.C.C. No. 1287 of 1999. The applicants had filed a record in July 2000 but failed to serve it in accordance with Rule 87(1), then withdrew the appeal in December 2000. The respondent's replying affidavit pointed out the need to comply with Rule 74 and to file a fresh notice of appeal, which the court accepted, holding that withdrawal extinguishes the original Notice of Appeal. The court computed the relevant delay as running from about 19th August 2000 to 12th February 2003 - approximately 900 days - and held it could not be reduced by the proviso to rule 81 absent a certificate of delay. Much of the delay was found unexplained, arising from an office mix-up, the withdrawal, and the delayed amendment of the motion. Although the intended appeal raised issues not wholly frivolous, the application was dismissed with costs on 24th January 2006.

Key legal issues

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01

Whether the delay of approximately 900 days was satisfactorily explained

Holding

The delay was not satisfactorily explained; it comprised failure to serve the record, withdrawal of the appeal, and post-withdrawal delay elongated by the need to amend the motion.

Reasoning

The court traced the delay from expiry of the 60-day period after lodging the original notice of appeal to the lodging of the amended Notice of Motion. Counsel gave no details of the office mix-up and no date of discovery. The accumulation of errors and lack of urgency left much of the delay unexplained, justifying dismissal.

p. 3
02

Whether a fresh Notice of Appeal was required after withdrawal of the original appeal

Holding

Yes; withdrawal of the appeal extinguished the original Notice of Appeal, so extension of time to file a fresh notice was necessary.

Reasoning

The respondent's replying affidavit raised non-compliance with Rules 74(1), (2), (3) and (6). The court agreed that once an appeal is withdrawn or struck out the original Notice of Appeal ceases to exist, making a fresh notice a prerequisite to the extension application.

p. 2
03

Whether the intended appeal was arguable

Holding

The court considered, though not mandatory, that issues not wholly frivolous were raised in the Memorandum of Appeal.

Reasoning

Although arguability need not be taken into account in extension-of-time applications, the judge considered it and found the issues in the Memorandum of Appeal dated 19th July 2000 not wholly frivolous. This did not outweigh the unexplained delay.

p. 3

Legal principles established

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  • Once an appeal is withdrawn or struck out, the original Notice of Appeal ceases to exist and a fresh notice of appeal is required.
  • The proviso to rule 81 shortening delay applies only where there is a certificate of delay and the letter bespeaking proceedings was sent to the respondent.

Court orders

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  1. 1.The application for extension of time to file and serve a fresh Notice of Appeal and to file the Memorandum and Record of Appeal is dismissed with costs
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1287 of 1999
Jurisdiction invoked
Court of Appeal Rules (inherent extension-of-time jurisdiction under Rule 81 as invoked in the application)

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, "S. W. Njuguna & 3 Others v Mataara Tea Factory Co. Ltd & 8 Others", Case Analysis (2006). Civil Appli NAI 17 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/334/eng@2006-01-24

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