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Court of AppealPartially AllowedNot stated in the judgment· [2009] KECA 102 (KLR)

Frances Gachoki Murage v Julia Wainoi Kinyua & another [2009] KECA 102 (KLR)

Court of Appeal of Kenya
15 May 2009
EOE.O. O'Kubasu
1,017 words in judgment
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The bottom line

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Kenya's Court of Appeal granted extra time to file an appeal where the High Court's own delays caused the holdup, clarifying the Rule 4 test.

What this practically means

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Executive summary

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This is a single-judge decision of the Court of Appeal at Nyeri (E.O. O'Kubasu, JA) delivered on 15th May 2009 in a Notice of Motion brought under Rule 4 of the Court of Appeal Rules by Francis Gackoki Murage, the intended appellant against a decision of Khaminwa J. at Embu delivered on 16th January 2008. The applicant sought extension of time to file an intended appeal, extension of his notice of appeal dated 29th January 2008, and costs in the appeal. The court restated the settled Rule 4 principles: the discretion is unfettered but must be exercised judicially, having regard primarily to the length of and reasons for the delay, the arguability of the intended appeal (arguable meaning not frivolous, not necessarily successful), and prejudice to the respondents, while stressing that the list is not exhaustive. Quoting Patel v Waweru and Leo Sila Mutiso, the court accepted the applicant's explanation that he had applied for proceedings in time and that the delay stemmed from the High Court's failure to prepare and supply the judgment and proceedings, a factor the judgment expressly recognizes as relevant, particularly given that the subject matter was family land on which all parties were still living. The court accordingly allowed the application in part: leave was granted to lodge the record of appeal out of time, to be lodged and served within thirty days. However, the court declined to extend the notice of appeal, holding that since a notice of appeal had been filed in time there was no justification for another, and that what the applicant really required was extension of time to lodge the record of appeal. Costs of the application were ordered to abide the outcome of the intended appeal.

Key legal issues

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01

The principles governing extension of time under Rule 4 of the Court of Appeal Rules

Holding

The discretion is unfettered but must be exercised judicially on reasons; the main factors are the length of and reason for the delay, arguability of the intended appeal, and prejudice to the respondent, with other factors such as delay by the courts, finances, ages of parties and conduct of advocates potentially relevant.

Reasoning

The court restated the settled Rule 4 jurisprudence, quoting Patel v Waweru and Leo Sila Mutiso v Rose Hellen Wangare Mwangi. It emphasized that the listed considerations are not exhaustive because a discretionary exercise cannot be mechanically restricted. Applying those principles, the delay attributable to the High Court's slow preparation of proceedings, and the fact that the subject matter was family land on which all parties lived, justified extension.

p. 2
02

Whether delay caused by the High Court in supplying proceedings justified extension

Holding

Yes. The applicant applied for proceedings within time and the delay was caused by the High Court's failure to prepare and supply them; this constituted a sufficient reason warranting extension.

Reasoning

The applicant's affidavit showed he applied for the proceedings well inside the permitted period, and the court accepted that the main reason for the delay was that the High Court delayed in preparing and supplying the judgment, with clerks repeatedly saying the proceedings were not ready. Considering the guiding principles and that the subject matter was family land, the court found sufficient material to grant the prayers insofar as they concerned lodging the record out of time.

p. 2

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary, exercised on reasons and not whim, guided principally by the length of and reasons for the delay, the arguability of the intended appeal, and prejudice to the respondent - the list not being exhaustive.
  • Where a notice of appeal has been filed within time, there is no basis for granting an extension to file another notice of appeal; the appropriate relief is extension of time to lodge and serve the record of appeal.

Court orders

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  1. 1.Application allowed
  2. 2.Leave granted to lodge the record of appeal out of time
  3. 3.The record of appeal to be lodged and served within thirty (30) days from the date of the order
  4. 4.Costs of the application to abide the outcome of the intended appeal
On appeal from
High Court of Kenya at Embu
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Frances Gachoki Murage v Julia Wainoi Kinyua & another [2009] KECA 102 (KLR)", Case Analysis (2009). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/102/eng@2009-05-15

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