Florence Imathiu v Mwongera Mugambi Rinturi & 3 others [2013] KECA 254 (KLR)
The bottom line
#The Court of Appeal refused to excuse an unexplained one-year delay in trying to strike out an appeal, dismissing the application with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court can extend time under Rule 4 for filing an out-of-time application to strike out an appeal under Rule 84
Rule 4 empowers the Court to extend time limited by the Rules, including the 30-day limit in the proviso to Rule 84, but the discretion must be exercised judicially and requires a satisfactory explanation for the delay
Rule 4 allows the Court to extend time limited by the Rules for doing any act authorized or required by the Rules, whether before or after the doing of the act. The proviso to Rule 84 imposes a 30-day limit on applications to strike out. That time limit falls within Rule 4's scope. However, the established guidelines require consideration of the length of delay, the reason for delay, the prospects of the application, and prejudice to the respondent. An applicant who offers no explanation for an almost one-year delay cannot benefit from the discretion.
Whether the unexplained delay of almost a year justified extension of time
No - the applicant gave no reason for the delay in her affidavit or counsel's submissions, so the prayer for extension was refused and the consequential prayer to strike out the appeal fell away
The Record of Appeal was filed on 12th October 2010 and, absent any raised issue of late service, was assumed served within 7 days under Rule 90. The application was filed on 23rd November 2011, nearly a year after the prescribed 30-day period. The applicant offered no explanation for the delay. Because the striking-out prayer hinged on leave being granted, the Court declined to consider it and dismissed the whole application.
Legal principles established
#- The proviso to Rule 84 of the Court of Appeal Rules bars an application to strike out a Notice or Record of Appeal brought after the expiry of 30 days from service of the Notice or Record of Appeal
- The discretion to extend time under Rule 4 is unfettered but must be exercised judicially, and an applicant must account for the delay; in considering the extension the court considers the length of and reason for the delay, the chances of the appeal, and the prejudice to the respondent
Court orders
#- 1.Refusal of leave to bring the application to strike out out of time
- 2.Dismissal of the Notice of Motion application dated 23rd November 2011
- 3.Costs of the application to the appellants
- On appeal from
- High Court of Kenya at Meru
- H.C Succession Cause No. 213 of 1997
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Rules 4 and 84 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Florence Imathiu v Mwongera Mugambi Rinturi & 3 others [2013] KECA 254 (KLR)", Case Analysis (2013). Civil Appeal (Application) No. 277 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/254/eng@2013-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.