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Court of AppealDismissedCivil Application No. Nai. 112 of 2009 (rule 4 application arising from Nakuru HCCC Originating Summons of 27th August 2003)· [2009] KECA 50 (KLR)

Samuel Thuita Wanjama v Celestine Mwaniki Muna & Another [2009] KECA 50 (KLR)

Court of Appeal of Kenya
6 November 2009
3,278 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to extend time for an appeal because the applicant could not explain long delays, costing him the case and paying costs.

What this practically means

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Executive summary

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This was a single-Judge application under rule 4 of the Court of Appeal Rules seeking enlargement of time to file a fresh notice of appeal, deeming of an existing notice as timeously filed, and extension of time to file and serve the record of appeal. The underlying dispute concerned property L.R. No. 12250/142 in Nakuru, decided by Kimaru, J. on 13th June 2006 in an originating summons in which the plaintiff, Lilian Mweru, had died on 16th March 2006 before judgment. The applicant's original advocate filed and served a timeous notice of appeal but died in September 2007 without prosecuting the appeal; the applicant learned of the death in June 2008, retrieved his file in December 2008, instructed new advocates in February 2009, and filed this application on 13th May 2009 after being served with an application to substitute the deceased's estate. The court, applying the settled rule 4 principles (length of and explanation for delay, arguability, and prejudice), excused the delay occasioned by the advocate's death and file retrieval but found the subsequent two-month and three-month delays unexplained and inordinate. It declined to permit a second notice of appeal where one already existed on record, holding validity of a notice of appeal is a matter for a full bench. It also held the applicant's reliance on the sensitivity of land matters could not excuse unexplained delay. The application was dismissed in its entirety with costs to the respondent.

Key legal issues

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01

Whether the period of delay following the death of the applicant's advocate was excusable

Holding

The delay from the advocate's death in September 2007 to retrieval of the file in December 2008 was accepted as explained, but the further two-month delay in instructing new advocates and three-month delay in filing the application were unexplained and inordinate

Reasoning

The court accepted the applicant's unchallenged account of discovering his advocate's death and retrieving his file. However, after retrieval of the file the applicant took about two months to instruct new advocates, and the new advocates took a further three months to file the application, with no explanation offered for either period. Unexplained inordinate delay weighed decisively against the exercise of discretion.

p. 4
02

Whether a fresh notice of appeal could properly be filed where a notice of appeal already exists on record

Holding

No; the existing notice had been timeously filed and served, and a single Judge cannot entertain a second notice or determine the validity of the first, which is for a full bench

Reasoning

Relying on Dolphin Palms Limited v Al-Nasibh Trading Co. Ltd, the court held that where a notice of appeal is already on record, the proper prayer is enlargement of time for filing, not permission to file a second notice. Whether a notice served on the advocates of a party who died before judgment had abated could not be decided by a single Judge.

p. 4
03

Whether the intended appeal was arguable and whether the respondent would suffer prejudice

Holding

Although the applicant raised arguable points (marriage, divorce/judicial separation, proof of contribution), the court was not satisfied on the judgment that the points were prima facie meritorious, and extending time in a 2003 matter whose appeal the applicant himself had considered abated would prejudice the respondent

Reasoning

The absence of a draft memorandum of appeal was cured by the affidavit's identification of arguable issues, but the court declined to find the points prima facie meritorious merely from reading the superior court's judgment. On prejudice, the court preferred the respondent's position that reviving a matter commenced in 2003, which the applicant himself had treated as abated, would operate to the respondent's prejudice.

p. 5

Legal principles established

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  • An application under rule 4 for extension of time is an exercise of unfettered discretion to be exercised judicially, in which the applicant must state the period of delay, explain it, demonstrate the appeal is arguable and show the respondent will suffer no prejudice
  • Time limits in appellate procedure exist to be observed, and laxity in compliance may defeat justice
  • Where a valid notice of appeal is already on record, a single Judge should not permit a second notice of appeal to be filed, and the validity of the existing notice is a matter for a full Court
  • The argument that a land matter deserves expedition before the Court of Appeal cannot excuse unexplained delay; sensitivity of subject matter applies to all parties

Court orders

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  1. 1.The notice of motion dated 13th May 2009 is dismissed in its entirety
  2. 2.The respondent is awarded the costs of the application

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 74(1)
  • Court of Appeal Rulesrule 77
  • Court of Appeal Rulesrule 82
  • Court of Appeal Rulesrule 52(b)

Cases cited (4)

  • Major Joseph Mweteri Igweta vs. Mukira M'Ethare & Another
    Civil Application No. Nai. 8 of 2000
  • Pan African Paper Mills (EA) Ltd vs. Olaka
    [2001] KLR 8
  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997
  • Dolphin Palms Limited vs. Al-Nasibh Trading Co. Ltd and two others
    Civil Application No. Nai. 112 of 1999
On appeal from
High Court of Kenya at Nakuru
Originating Summons dated 27th August 2003 concerning L.R. No. 12250/142, Free Area, Nakuru Municipality
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single Judge, extension 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, "Samuel Thuita Wanjama v Celestine Mwaniki Muna & Another [2009] KECA 50 (KLR)", Case Analysis (2009). Civil Application No. Nai. 112 of 2009 (rule 4 application arising from Nakuru HCCC Originating Summons of 27th August 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/50/eng@2009-11-06

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