REPUBLIC v FLORA NJOKI NJERU , EXPERTE CONTROLLER AND AUDITOR GENERAL & ANOTHER [2007] KECA 358 (KLR)
The bottom line
#Kenya's Court of Appeal granted the Republic extra time to appeal, deducting the days when it never received notice of the ruling.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court should grant the Republic an extension of time to file and serve the Notice of Appeal and Record of Appeal out of time under rule 4 of the Court of Appeal Rules.
- 2.The length of the delay in lodging the Notice of Appeal.
- 3.The reason for the delay.
- 4.Whether, possibly, the intended appeal has chances of success if the extension is granted.
- 5.The degree of prejudice, if any, that the respondent would suffer if the extension is granted.
Key legal issues
#Exercise of the unfettered discretion under rule 4 of the Court of Appeal Rules to extend time for appealing
The discretion is unfettered but must be exercised judicially, not arbitrarily, capriciously, or on sentiment or sympathy; on these facts it was properly exercised in favour of the Republic and the extension was granted.
The court adopted the settled approach in Leo Sila Mutiso: extension of time is discretionary and governed by the length of the delay, the reason for it, the (possible) chances of the appeal succeeding, and the prejudice to the respondent. Weighing all factors - a delay reduced to 9 days once the period without notice of the ruling was deducted, an adequate explanation, an appeal not prima facie frivolous, and no suggested prejudice - the Judge concluded the discretion should be exercised in favour of the applicant.
Computation of the length of delay where the applicant was never served with notice of the delivery date of the judgment
The period between delivery of the ruling and the applicant's first receipt of notification that it had been delivered is deducted from the delay; here 43 days were deducted from 52, leaving a delay of 9 days.
The notice of the revised delivery date of 12 September 2006 was stamped as received by the respondent's advocates but carried no stamp evidencing receipt by the Attorney General's office, so there was no written evidence of when it reached the applicant. The applicant was therefore treated as unaware of the ruling until 25 October 2006, when the respondent's advocates' letter enclosing the draft order was received, and that un-notified period could not count against the applicant.
Whether the intended appeal had chances of success and whether the respondent would suffer prejudice if the extension were granted
The intended appeal did not appear prima facie frivolous, and the respondent did not suggest she would suffer prejudice if the application was granted; both factors favoured granting the extension.
Under Leo Sila Mutiso the chances of success are only possibly relevant, and the Judge deliberately said little because arguability is for the full court if the appeal proceeds; it sufficed that the draft grounds - attacking a reinstatement order said to fall outside judicial review, its ambiguity, and alleged errors on certiorari for gross misconduct - were not frivolous. On prejudice, the replying affidavit alleged the application was intended to delay justice, but no specific prejudice to the respondent was identified.
Legal principles established
#- On an application to extend time for appealing, the discretion is essentially discretionary and the matters taken into account are the length of the delay, the reason for the delay, possibly the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- The discretion under rule 4 of the Court of Appeal Rules is unfettered but must be exercised judicially, not arbitrarily, capriciously, or on the basis of sentiment or sympathy.
- Where the applicant was never served with notice of the date fixed for delivery of the judgment or ruling, the period elapsing before the applicant first learns of the decision is deducted in computing the length of delay for an extension-of-time application.
- A notice of ruling stamped as received by one party only, with no stamp or other written evidence of receipt by the other party, does not establish that the un-notified party knew of the delivery date.
Court orders
#- 1.Time for lodging a Notice of Appeal from the decision of Osiemo J delivered on 12th September 2006 extended to expire seven days from the date of delivery of the ruling (delivered 20th April 2007).
- 2.The Notice of Appeal to be served in accordance with rule 76 (1) of the Court of Appeal Rules within seven days of the lodging of the Notice of Appeal.
- 3.The Record of Appeal to be lodged within seven days from the date on which the Notice of Appeal is lodged.
- 4.The Record of Appeal to be served on the respondent's advocates within fourteen days of the lodging of the Record of Appeal.
- 5.The costs of the application to be in the intended appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Appl. No. 693 of 2005 (Judicial Review; described in the motion as H.C.C.C. No. 693 of 2005)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules - the discretion of the Court, exercised by a single Judge of Appeal, to extend time for lodging and serving a Notice of Appeal and Record of Appeal out of time.
Relief refused
#Costs of the application provided for in the applicant's favour as sought ('That the costs of this application be provided for')
The court did not award the applicant the costs of the application outright; it directed that costs shall abide the outcome of the intended appeal.
Costs
The costs of this application shall be in the intended appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I therefore hereby order that the time for lodging a Notice of Appeal from the decision of Osiemo J. delivered on 12th September 2006 be extended to expire seven days from the date of delivery of this ruling.
I further order that the Record of Appeal shall be lodged within seven days from the date on which the Notice of Appeal is lodged and that the Record of Appeal shall be served on the respondent’s advocates within fourteen days of the lodging of the Record of Appeal.
Whilst the discretion under rule 4 of the Rules is unfettered, it must, like all discretion, be exercised judicially and not arbitrarily or capriciously; nor should it be exercised on the basis of sentiment or sympathy.
It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly, (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.
I consider that the period from the delivery of the ruling on 12th September 2006 until 25th October 2006 when the notification that the ruling had been delivered was received by the applicant should, in my view, be deducted in the final calculation of the length of delay.
There was thus no written evidence as to when the notice of the revised date for delivery of the judgment was delivered by the superior court to the applicant herein.
The costs of this application shall be in the intended appeal.
Issues in the judgment
#The reproduced affidavits give conflicting dates for when the ruling was first scheduled for delivery: the respondent's affidavit depones that Osiemo J was set to deliver the ruling on 4th July 2005, while the applicant's counsel depones that the case was heard on 26/4/2006 and 13/6/2006 and the ruling was set for 4th July 2006; the judgment does not reconcile these dates.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "REPUBLIC v FLORA NJOKI NJERU , EXPERTE CONTROLLER AND AUDITOR GENERAL & ANOTHER [2007] KECA 358 (KLR)", Case Analysis (2007). Notice of Motion dated 15th November 2006, lodged 17th November 2006 (Court of Appeal application number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/358/eng@2007-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.