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Court of AppealAllowedNotice of Motion under Rule 4 of the Court of Appeal Rules, arising from Nyeri High Court Civil Appeal No. 86 of 2000· [2009] KECA 74 (KLR)

Edward Kamau Ndungu v Peter Njogu Gitau [2009] KECA 74 (KLR)

Court of Appeal of Kenya
6 November 2009
EOE. O. O'Kubasu
1,447 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a litigant more time to appeal because he acted quickly once he learned his case had been dismissed.

What this practically means

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Executive summary

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This is a single-judge application under Rule 4 of the Court of Appeal Rules, decided at Nyeri by O'Kubasu, JA, seeking extension of time to file a notice of appeal and record of appeal out of time from a ruling of Kasango, J, dated 17th October 2008, by which the applicant's appeal in Nyeri High Court Civil Appeal No. 86 of 2000 was dismissed for want of prosecution under Order XLI Rule 31(2) of the Civil Procedure Rules. The applicant explained that he had no notice of the dismissal listing, that his advocates may have been served but failed to attend, and that he was ailing and only learned of the dismissal in June 2009 when the respondent began boasting in the village of his success; he promptly instructed counsel and filed this application on 8th July 2009. The respondent opposed, contending the application was an afterthought, that there was no proof of illness, and that eight years had already elapsed since the appeal was filed. The court restated the settled Rule 4 principles from Mongira v Makori, Mwangi v Kenya Airways Ltd and Leo Sila Mutiso v Rose Hellen Wangari Mwangi: the four factors of length of delay, reason for delay, chances of appeal success and prejudice to the respondent guide, but do not confine, the single judge's unfettered discretion exercised judicially. Finding the applicant acted promptly on learning of the dismissal and that the respondent would suffer no prejudice, the judge allowed the application, ordering the notice of appeal within seven days and the record of appeal within thirty days, with costs of the application abiding the outcome of the intended appeal.

Key legal issues

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01

Exercise of discretion under Rule 4 of the Court of Appeal Rules

Holding

The discretion under Rule 4, though unfettered, must be exercised judicially; the classic four factors guide but do not confine the single judge.

Reasoning

The court restated the principles from Mwangi v Kenya Airways Ltd and Leo Sila Mutiso: the decision to extend time is discretionary and considers length of delay, reason for delay, chances of success and prejudice to the respondent. The list is expressly not exhaustive; a judge may consider any other relevant factor so long as the discretion is exercised judicially.

p. 3
02

Explanation for delay where appellant learned of dismissal late

Holding

Prompt action upon learning of the dismissal justified extension of time, and the delay was excused.

Reasoning

The applicant learned of the dismissal of his appeal in June 2009 when the respondent began boasting in the village; he promptly instructed counsel and filed the application on 8th July 2009. The court weighed the length of delay and the explanation given, found the respondent would suffer no prejudice, and held the application should be granted.

p. 3

Legal principles established

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  • In an application under rule 4, a single judge exercises an unfettered discretion which must nonetheless be exercised judicially, and the four well-known factors (length of delay, reason for delay, chances of appeal succeeding, prejudice to respondent) are not exhaustive.
  • The general matters considered on an application to extend time for appealing are: the length of delay; the reason for the delay; the chances of the appeal succeeding; and the degree of prejudice to the respondent.

Court orders

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  1. 1.Extension of time granted to file the notice of appeal and record of appeal out of time
  2. 2.Applicant to file and serve a notice of appeal within seven (7) days from the date of the order
  3. 3.Record of appeal to be lodged and served within thirty (30) days from the date the notice of appeal is filed
  4. 4.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Civil Procedure Rules (cited in the applicant's affidavit as governing dismissal for want of prosecution)Order XLI Rule 31 (2)

Cases cited (3)

  • Mongira & Another v Makori & Another
    [2005] 2 KLR
  • Mwangi v Kenya Airways Ltd
    [2003] KLR 486
  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. NAI. 255 of 1997 (unreported)
On appeal from
High Court of Kenya at Nyeri
Civil Appeal No. 86 of 2000
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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Edward Kamau Ndungu v Peter Njogu Gitau [2009] KECA 74 (KLR)", Case Analysis (2009). Notice of Motion under Rule 4 of the Court of Appeal Rules, arising from Nyeri High Court Civil Appeal No. 86 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/74/eng@2009-11-06

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