Joseph Maina Njoroge & 2 others v Paul Chege Muhahi

The court observed that although the power is discretionary, it cannot be exercised capriciously or at the whim of the court. The settled approach requires the applicant to address the length of the delay, the explanation for it, whether the intended appeal is arguable without conducting a mini-appeal, and the prejudice the respondent would suffer if extension is granted. All four factors must be evaluated on the material placed before the court; here counsel addressed arguability and prejudice only glancingly, and the court assessed each factor on the affidavit record.

The applicants' only explanation for the twenty-three month delay was inability to raise advocates' fees. The court held this untenable because the Rules expressly cater for impecunious appellants through relief from fees and security. Distinguishing Karani, where the applicant had taken every step and applied only one day late, these applicants instructed advocates who filed the notice of appeal but thereafter produced no evidence of applying for proceedings, seeking funds or filing in person. The explanation was rejected and the delay left unexplained.

On a Rule 4 application the court gauges arguability without holding a mini-appeal, but it requires some material. Here the record contained only a copy of the judgment; proceedings and a draft memorandum of appeal were not annexed, and counsel for the applicants did not submit on any arguable ground. With nothing before the court, the third limb of the Rule 4 test failed independently of the inadequacy of the explanation for the delay, reinforcing the dismissal.

Although neither counsel addressed the court on prejudice, the judge considered the question of his own motion, observing that the respondent had held the judgment since November 2004. Reviving a succession dispute over revocation of a grant nearly three years after judgment, absent compelling reasons, would unsettle the respondent's position. This factor reinforced the dismissal already arrived at on the explanation and arguability limbs of the test.

The respondent's replying affidavit asserted that no notice of appeal had been filed. The court found as a fact that a notice dated 26th November 2004 was filed on 8th December 2004, giving the applicants sixty days from that date to lodge the record. Non-service on the respondent explained, but did not excuse, his mistaken assertion. This finding fixed the commencement of the period the applicants had to explain.