William Kamunge Gakui v Eustace Gitonga Gakui
The bottom line
#Kenya's Court of Appeal can extend your appeal deadline if you missed it for a good reason and your case raises a genuine arguable issue.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in lodging the notice of appeal was excusable
The delay was excusable because the applicant and his advocate had no notice of the delivery of the judgment and learned of it only after time had lapsed.
The applicant learned of the judgment on 9th March 2011, after the notice period expired on 2nd March 2011. Judgment was delivered in the absence of both the applicant and his advocate, and the advocate holding brief was unknown. The main reason given for the delay was lack of awareness of the judgment, which the court accepted as sufficient in the exercise of its Rule 4 discretion.
Whether the intended appeal was arguable
The intended appeal was arguable because the applicant, as sole witness whose evidence was disbelieved, wished a second opinion on the evaluation of that evidence.
The applicant was the sole witness at trial and the trial Judge did not believe his evidence. He sought a second opinion on how that sole evidence was appraised. Arguability does not require that the appeal must succeed; on the facts there was an arguable point as to whether the trial Judge properly evaluated the evidence in withholding the relief sought.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, taking into account the length of and reason for the delay, the chances of the appeal succeeding and prejudice to the respondent.
- An intended appeal need only be arguable, not certain to succeed, for extension of time to be granted.
Court orders
#- 1.Leave granted to the applicant to file a notice of appeal out of time
- 2.Applicant granted fourteen (14) days from 6th June 2013 to lodge a notice of appeal
- 3.Record of appeal to be lodged within twenty-one (21) days from the date of lodging the notice of appeal
- 4.No orders as to costs
- On appeal from
- High Court of Kenya
- Nyeri HCCC No. 5 of 2007
- Jurisdiction invoked
- Rules 4 and 41 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Kamunge Gakui v Eustace Gitonga Gakui", Case Analysis (2013). Notice of Motion dated 15th March, 2011 (arising from Nyeri HCCC No. 5 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/27/eng@2013-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.