Ngugi Gitonga v Eric Kagema Kigotho
The bottom line
#Kenya's Court of Appeal confirmed you can still file an appeal late if the delay was short, explained, and the appeal has merit.
What this practically means
#Executive summary
#Key legal issues
#What principles govern the exercise of the discretion to extend time for filing a notice of appeal under rule 4 of the Court of Appeal Rules?
The discretion is unfettered but must be exercised judicially, not arbitrarily, capriciously or on the basis of sentiment or sympathy; the court considers the length of the delay, the reason for it, the chances of the appeal succeeding and the prejudice to the respondent, and that list is not exhaustive.
The court adopted its earlier decision in Leo Sila Mutiso vs Rose Helen Wangari Mwangi as the settled statement of principle and treated the four factors as the guidelines for the application before it. It stressed, however, that the judge is not confined in law to those factors, that the list is never exhausted, and that each case must turn on its own circumstances. Applied here, the guidelines produced a grant of leave because the delay was short, explained, the appeal arguable and no prejudice shown.
Which period of delay must the applicant explain where the court registry fails to communicate the summary dismissal promptly?
The period taken by the registry to communicate the dismissal cannot be blamed on the applicant; the applicant need only explain the interval from receipt of the notification letter, here about six working days from 26th March to 3rd April 2007, which was neither inordinate nor unexplained.
The notice of appeal fell due on 26th February 2007. The judge held that the registry's delay up to its letter of 12th March 2007 could not be blamed on the applicant. He accepted the advocate's stamp and the uncontradicted complaint letter of 27th March 2007 as proof of receipt on 26th March 2007, rejecting the inference drawn from the respondent's counsel receiving her copy on 16th March 2007. Filing on 3rd April 2007, about six working days later, was reasonable because counsel needed instructions and had to assemble the record.
Is a draft memorandum of appeal necessary to demonstrate that the intended appeal is arguable?
No; the court assesses arguability from the whole record. On the memorandum of appeal and the subordinate court proceedings, the intended appeal against the summary dismissal of a first appeal was not frivolous.
The respondent contended that the application failed because no draft memorandum of appeal was annexed and because section 72(1) of the Civil Procedure Act had not been complied with. The judge did not accept that the want of a draft memorandum was fatal: arguability is judged by looking at the whole record. He perused the memorandum of appeal that was before the superior court together with the subordinate court proceedings and judgment, and concluded the intended appeal could not be described as frivolous.
Did the respondent suffer any prejudice if the extension of time was granted?
No prejudice was shown or perceived; although counsel did not address the point, the court saw no prejudice to the respondent in allowing the notice of appeal to be filed.
Prejudice is the fourth guideline, yet neither counsel addressed it. The judge considered it of his own motion and found none in allowing the notice of appeal to be filed. The respondent's objections - that the applicant's counsel lacked candour about receipt of the letter and could have moved immediately on 26th or 27th March 2007 - did not persuade the court, which held it unreasonable to expect instant action before the extracted order was obtained and while instructions and documents were being assembled.
Legal principles established
#- In deciding whether to extend time for appealing, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent; the discretion is unfettered but must be exercised judicially and not on sentiment or sympathy.
- The factors for extension of time are not exhaustive; each application must be considered on its own circumstances.
- Arguability of an intended appeal may be assessed from the whole record even where no draft memorandum of appeal is annexed to the extension-of-time application.
Court orders
#- 1.The application granted: the applicant given ten days from the date of the ruling to file and serve a notice of appeal out of time against the order of Ang'awa J made on 12th February 2007.
- 2.No order as to costs.
- On appeal from
- High Court of Kenya at Nairobi
- Civil Appeal No. 1105 of 2004
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time to file a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- National Bank of Kenya Ltd v Interior Contract Supplies Ltd[2008] KEHC 1661 (KLR)17 Sept 2008
Cite this brief
#Cite this brief
Caselaw, "Ngugi Gitonga v Eric Kagema Kigotho", Case Analysis (2007). Court of Appeal application number not stated in the judgment (arising from High Court Civil Appeal No. 1105 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/347/eng@2007-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.