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Court of AppealDismissedCivil Appeal No. 110 of 2006

Njogu Macharia v Paul Wairuri Mwangi [2010] KECA 421 (KLR)

Court of Appeal
12 February 2010
1,609 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse an unexplained delay in filing an appeal, confirming that extension of time is never granted as a matter of routine.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi dismissing a reference by Njogu Macharia against the decision of a single judge who had refused his application for extension of time to file and serve a record of appeal out of time. The application was brought under Rules 4, 42(1) and (2) and 43(1) of the Court of Appeal Rules. The single judge had found the motion incompetent because it did not state its grounds on its face, contrary to Rule 42(2), and because the supporting affidavit spoke of extending time to file a notice of appeal rather than a record of appeal, putting it at variance with the motion. On the reference under Rule 54(1)(b), the full Court reaffirmed that a single judge exercises the Rule 4 discretion on behalf of the whole Court, and that an applicant must therefore show that the single judge considered an irrelevant matter, ignored a relevant one, misapprehended the facts or law, or reached a decision that is plainly wrong. The Court accepted that procedural defects would now be viewed through the overriding objective introduced by section 3A of the Appellate Jurisdiction Act (Act No. 6 of 2009), and that some advocate's faults need not be visited on the litigant. However, the decisive factor was the unexplained delay: the record of appeal was lodged on 5th June 2006, well past the 14th May 2006 deadline, and the applicant's affidavit offered no explanation. Applying Ratman v Kumarasamy, the Court held that extension of time is not a matter of routine and that section 3A does not excuse unexplained delay, since expeditious disposal is itself an objective of that section. The reference was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the single judge's decision dismissing the application for extension of time ought to be varied, discharged or reversed by the full Court on a reference under Rule 54(1)(b)
  2. 2.Whether procedural defects in the notice of motion (no grounds stated on the face, and affidavit at variance with the orders sought) rendered the motion incompetent
  3. 3.Whether section 3A of the Appellate Jurisdiction Act (overriding objective) altered the court's approach to those procedural defects and to the unexplained delay
  4. 4.Whether the applicant gave a sufficient explanation for the delay in filing the record of appeal

Key legal issues

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01

Standard of review of a single judge's Rule 4 discretion on reference to the full Court

Holding

A party seeking to upset the single judge's decision must show that an irrelevant matter was considered, a relevant matter ignored, the facts or law misapprehended, or that the decision is plainly wrong; the single judge exercises the Court's discretion on its behalf.

Reasoning

Because the single judge exercising the Rule 4 discretion does so on behalf of the full Court, a reference under Rule 54(1)(b) is not an automatic rehearing. The full Court will only intervene on established grounds of misdirection or where the decision is plainly wrong on the known facts and law. On the facts, the single judge correctly identified the procedural defects and the unexplained delay, so there was no basis for interference.

p. 1
02

Effect of section 3A of the Appellate Jurisdiction Act on procedural defects and unexplained delay

Holding

Procedural defects must now be viewed in light of the overriding objective, but section 3A does not excuse an unexplained delay, since one of its objectives is expeditious disposal of appeals.

Reasoning

The court acknowledged that the single judge's view of the procedural defects was 'probably right' at the time, and that after Act No. 6 of 2009 such defects would be viewed through the overriding objective. However, the defects were not the decisive consideration: the applicant gave no explanation at all for the delay in filing the record of appeal, and granting extension as a matter of routine would defeat section 3A's objective of expeditious disposal.

p. 3
03

Duty to explain delay in extension-of-time applications

Holding

An applicant seeking extension of time after the statutory period must give some explanation for the delay; failure to do so is fatal to the application notwithstanding counsel's faults attributable to the advocate.

Reasoning

The record showed the judgment was delivered in November 2002, proceedings were collected on 15th March 2006, the record should have been filed by 14th May 2006, but was lodged on 5th June 2006. The five-paragraph supporting affidavit gave no explanation for this delay. Although some procedural faults might not be visited on the litigant personally, the delay itself remained unexplained and justified refusing the extension.

p. 3

Legal principles established

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  • On a reference under Rule 54(1)(b), the full Court will interfere with a single judge's exercise of the Rule 4 discretion only where the single judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the facts or law so as to reach a wrong decision, or where the decision as a whole is plainly wrong.
  • An application for extension of time must explain any delay; extension of time cannot be granted as a matter of routine, and section 3A of the Appellate Jurisdiction Act (overriding objective) does not displace the need to explain delay.
  • Applications to the Court, except informal applications, must be brought by notice of motion supported by one or more affidavits having knowledge of the facts, and motions must state the grounds upon which they are brought.

Court orders

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  1. 1.The reference be and is hereby dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Single Judge of the Court of Appeal (reference from single judge's decision under Rule 54(1)(b))
Jurisdiction invoked
Rules 4, 42(1) and (2), 43(1) and 54(1)(b) of the Court of Appeal Rules, read with section 3A of the Appellate Jurisdiction Act

Relief refused

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Extension of time to file and serve the record of appeal out of time, and deeming of the record of appeal as properly filed

The notice of motion was procedurally defective (no grounds on its face; supporting affidavit at variance with the orders sought) and the applicant gave no explanation for the delay in filing the record of appeal, which was lodged about three weeks after the deadline and more than three years after the judgment; extension of time is not granted as a matter of routine

p. 3

Costs

The reference be and is hereby dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

must prove to the full Court that in coming to his decision the single judge took into account an irrelevant matter, or he failed to take into account a relevant matter, or that he misapprehended the facts and/or the law applicable to the case and thus reached a wrong decision or that looked at as a whole on the basis of the known facts and the law the decision of the single judge is plainly wrong.
p. 2Standard of review on reference against a single judge's Rule 4 decision
Where there has been a delay, there must be some explanation for that delay and on this aspect of the matter, we do not think the provisions of section 3A of the Appellate Jurisdiction Act, even if it was applicable at the time, would materially alter that position.
p. 3Duty to explain delay despite the overriding objective
If extension of time was to be granted as a matter of routine, that would defeat one of the objectives of section 3A of the Appellate Jurisdiction Act, namely the expeditious disposal of appeals.
p. 3Extension of time is not a routine indulgence
That being the view we take of the matter we order that this reference be and is hereby dismissed with costs to the respondent.
p. 3Final orders - reference dismissed with costs

Issues in the judgment

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minor

The coram describes the appeal as being from 'the High Court of Kenya Civil Appeal No. 231 of 2000 at Nairobi (Aganyanya, J.A)', naming a Judge of Appeal in a High Court appeal; the reference itself was from a single judge's decision of 27th March 2009, which is not the same as the decision dated 12th November 2002 mentioned in the heading.

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, "Njogu Macharia v Paul Wairuri Mwangi [2010] KECA 421 (KLR)", Case Analysis (2010). Civil Appeal No. 110 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/421/eng@2010-02-12

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