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Court of AppealPartially AllowedNotice of Motion dated 15th May 2015 (Civil Application)· [2015] KECA 471 (KLR)

Paul Musili Wambua v Attorney General & 2 others [2015] KECA 471 (KLR)

Court of Appeal of Kenya
31 July 2015
Martha Karambu KoomeM.K. Koome
1,637 words in judgment
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The bottom line

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Kenya's Court of Appeal let a litigant file his appeal 17 days late because he was never told when judgment would be delivered.

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 (Koome JA) on a Notice of Motion under Rules 4 and 5(2)(b) of the Court of Appeal Rules, seeking extension of time to file a Notice of Appeal out of time, following the High Court's dismissal on 23 January 2015 of a constitutional petition by Prof Paul Musili Wambua seeking declarations that lecturers in public universities are not State Officers under Article 77 and that Section 3(1)(b) of the Betting Lotteries and Gaming Act is discriminatory. The applicant filed his Notice of Appeal 17 days late, explaining that he was not served with notice of the judgment delivery date and only learnt of it from a newspaper article on 8 February 2015, filing the Notice the next day. The Attorney General opposed, relying on Rael Munyaka on the need to explain every delay, and arguing unexplained delay of over three months in moving the application. Applying the settled Mutiso v Mwangi criteria - length of delay, reason for delay, arguability of the appeal and prejudice - the Judge found the 17-day delay explained, the intended appeal raising serious arguable points of law on constitutional and statutory interpretation, and any inconvenience to the respondents compensable by costs. The extension was granted: fourteen days to file the Notice of Appeal and thirty days thereafter to file the record of appeal, with costs of the application to the 1st respondent. The Rule 5(2)(b) prayers were left undetermined, being reserved for a full Bench.

Key legal issues

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01

Whether the 17-day delay in filing the Notice of Appeal was explained

Holding

Yes - the delay was attributable to the failure to serve notice of the judgment delivery date, and the applicant acted promptly upon learning of the judgment.

Reasoning

The record showed only counsel for the respondents was present when judgment was delivered, with no indication the applicant was notified. The applicant learnt of the judgment from a newspaper article on 8 February 2015 and filed the Notice of Appeal on 9 February 2015. These facts were not disputed; the averments of non-service were not controverted by affidavit evidence, only argument from the bar.

p. 3
02

Whether the intended appeal was frivolous and whether the respondents would suffer prejudice

Holding

The intended appeal raised serious arguable points of law on constitutional and statutory interpretation, and the respondents' inconvenience was compensable by costs.

Reasoning

Although the applicant did not attach draft grounds of appeal, the Judge perused the High Court judgment and found serious points of law on the interpretation of the Constitution and the Betting Lotteries and Gaming Act. The delay was not inordinate; any inconvenience to the respondents could be compensated by an award of costs.

p. 3

Legal principles established

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  • In an application for extension of time under Rule 4, the Judge exercises unfettered but judicious discretion, considering the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • A factual point raised from the bar without a replying affidavit or corresponding factual response does not assist the opposing party.

Court orders

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  1. 1.Extension of time granted: applicant given fourteen (14) days from the date of the ruling to file the Notice of Appeal
  2. 2.Applicant to file the record of appeal within 30 days after filing the Notice of Appeal
  3. 3.Applicant to pay the costs of the application to the 1st respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 77
  • Constitution of KenyaArticle 24
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 159(2)(d)
  • Betting Lotteries and Gaming ActSection 3(1)(b); Chapter 131
  • Court of Appeal RulesRules 4 and 5(2)(b)
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (2)

  • Rael Munyaka & 6 Others v Waitaluk Land Disputes Tribunal & 3 others
    {2007} eKLR
  • Mutiso v Mwangi
    [1999] 2 EA 231
On appeal from
High Court of Kenya
Constitutional Petition (not stated)
Jurisdiction invoked
Rules 4 and 5(2)(b) of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act; Article 159(2)(d) of the Constitution

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, "Paul Musili Wambua v Attorney General & 2 others [2015] KECA 471 (KLR)", Case Analysis (2015). Notice of Motion dated 15th May 2015 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/471/eng@2015-07-31

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