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Court of AppealDismissedCourt of Appeal Application (Nyeri) under Rule 4 - Notice and Record of Appeal extension application· [2013] KECA 430 (KLR)

Cyrus Muriuki Mathangani v Rose Wanjiku Mbai [2013] KECA 430 (KLR)

Court of Appeal of Kenya
23 May 2013
AVAlnashir Visram
566 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to revive a late appeal because a 22-month delay was unexplained and no certificate of delay or draft appeal was provided.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nyeri (Visram, JA) on an application under Rule 4 of the Court of Appeal Rules for extension of time to file the Notice and Record of Appeal out of time, from the judgment of the High Court of Kenya at Nyeri (Kasango, J.) dated 18th December 2008. The applicant, through counsel Mr. Maina Karigithi, argued that he received certified proceedings only on 28th July 2010 and filed the application within nine days, on 10th August 2010. The respondent, through Ms. Lucy Mwai, opposed, contending that the record should have been filed within sixty days of judgment and that no certificate of delay had been exhibited, so the true delay was twenty-two months. The Court agreed that, absent a certificate of delay, time ran from the date of judgment, making the delay inordinate and unexplained. It applied the settled principles from Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi - length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent. The Court also noted that the applicant had exhibited no draft memorandum of appeal, so the prospects of the intended appeal could not be assessed. The application was disallowed with costs to the respondent. The decision affirms that extension-of-time discretion must be exercised judiciously and that applicants must explain delay and demonstrate arguability of the intended appeal.

Key legal issues

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01

Commencement of time for filing the record of appeal absent a certificate of delay

Holding

Time runs from the date of delivery of judgment, so the delay is measured from judgment, not from receipt of certified proceedings

Reasoning

The respondent's counsel argued, and the Court agreed, that the applicant had not exhibited a certificate of delay to show that the proceedings were not availed until 28th July 2010. Without such a certificate, the statutory period of sixty days ran from judgment delivered on 18th December 2008, making the delay approximately twenty-two months rather than nine days.

p. 2
02

Exercise of discretion under Rule 4 on extension of time

Holding

The application fails because the delay is inordinate and unexplained, and the applicant furnished no draft memorandum of appeal to enable the Court to assess the chances of the appeal succeeding

Reasoning

Applying the Leo Sila Mutiso principles - length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent - the Court found the delay inordinately long and unexplained. Additionally, the applicant had not exhibited a draft memorandum of appeal or outlined the intended appeal, leaving the Court unable to ascertain the appeal's prospects of success.

p. 2

Legal principles established

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  • In the absence of a certificate of delay, time for filing a record of appeal starts running from the date of delivery of judgment.
  • Rule 4 confers a discretion to extend time which must be exercised judiciously, applying the factors of length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent.

Court orders

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  1. 1.The application for extension of time to file the Notice and Record of Appeal is disallowed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (1)

  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. NAI. 251 of 1997
On appeal from
High Court of Kenya at Nyeri
Not stated
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, "Cyrus Muriuki Mathangani v Rose Wanjiku Mbai [2013] KECA 430 (KLR)", Case Analysis (2013). Court of Appeal Application (Nyeri) under Rule 4 - Notice and Record of Appeal extension application. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/430/eng@2013-05-23

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