Samuel Njirani Ngabia v Michael Thungu Wanyoike & 2 others [2009] KECA 52 (KLR)
The bottom line
#The Court of Appeal refused to extend time for an appeal because the applicant showed no good reason for delay, no arguable appeal, and filed a flawed application.
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 applicant should be granted leave to file a Notice of Appeal and Record of Appeal out of time under Rule 4
- 2.Whether the delay in filing was inordinate and adequately explained
- 3.Whether the intended appeal was demonstrated not to be frivolous
- 4.Whether the respondents would suffer undue prejudice if the extension were granted
- 5.Whether the application was competent given that it referenced a non-existent ruling
Key legal issues
#Requirements for extension of time under Rule 4
The application failed all the requirements: no arguable appeal demonstrated, inordinate unexplained delay, and prejudice to the respondent.
The court applied the Wasike v Swala criteria. The applicant neither set out intended grounds in the application nor annexed a draft memorandum of appeal or the ruling. No notice of appeal was filed despite no ruling copies being needed for that. The decision was six months old and the underlying judgment dated from 2003, so the delay was inordinate and the respondent would be prejudiced by continued denial of the fruits of judgment.
Competence of the application
The application was incompetent because it referred in its heading and supporting affidavit to a ruling by Khaminwa J when the ruling was actually given by Khamoni J.
The 1st respondent's counsel pointed out that no ruling by Khaminwa J existed; the intended challenge was to a ruling by Khamoni J. The court held this misdescription rendered the application patently incompetent, an independent ground for dismissal apart from the failure to satisfy the Rule 4 criteria.
Overriding objective
Granting the application would subvert the overriding objective under sections 1A and 1B of the Civil Procedure Act and sections 3A and 3B of the Appellate Jurisdiction Act because it would cause further delay and costs.
The court invoked the overriding objective principles as an additional, independent basis for dismissal, holding that allowing the application would generate further delay and costs contrary to the statutory aims of expeditious and cost-effective litigation.
Legal principles established
#- Before a court exercises its discretion to extend time under Rule 4, the applicant must show that the intended appeal is not frivolous, that the application was brought without inordinate delay, and that the respondent will not suffer undue prejudice.
- An applicant for extension of time must set out the intended grounds of appeal or annex a draft memorandum of appeal and a copy of the challenged decision; counsel does not need a copy of the ruling to file a notice of appeal in time.
- An application that refers to a non-existent ruling in its heading is patently incompetent.
Court orders
#- 1.The application dated 24th June 2009 is dismissed
- 2.Costs of the application awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- H.C.C.C. 792 of 2003
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (Appellate Jurisdiction Act, sections 3A and 3B)
Relief refused
#Leave to file a Notice of Appeal and Record of Appeal out of time
The intended appeal was not shown to be arguable, the delay was inordinate and unexplained, the respondent would suffer prejudice, and the application was patently incompetent
Costs
Costs of the application to the 1st respondent
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.
Before the court can exercise its unfettered discretion to extend time in favour of the applicant, the applicant has to show, among other things that the appeal or the intended appeal is not frivolous, that the application has been brought without inordinate delay and that the respondent would not suffer undue prejudice if the application is not allowed (see WASIKE v SWALA [1984] KLR 591.
There cannot in my opinion be greater prejudice to a respondent than the frustration of keeping him away from the fruits of a judgment in his favor given nearly 6 years ago.
Surely the applicant’s counsel did not need copies of the ruling to file and serve a notice of appeal within stipulated time.
I decline to exercise my unfettered discretion in favour of the applicant and I hereby dismiss the application with costs to the 1st respondent. It is so ordered.
Issues in the judgment
#The heading and supporting affidavit refer to a ruling by 'Khaminwa J' while the judgment records the ruling as having been given by 'Khamoni J' - a point the respondent raised and the court treated as rendering the application incompetent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Njirani Ngabia v Michael Thungu Wanyoike & 2 others [2009] KECA 52 (KLR)", Case Analysis (2009). Application dated 24th June 2009 (arising from H.C.C.C. 792 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/52/eng@2009-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.