Chebet Kimugai v Margaret Chepkikor Charito [2015] KECA 608 (KLR)
The bottom line
#Kenya's Court of Appeal gave a late appellant 14 more days to appeal, holding that litigants shouldn't be punished for delays in obtaining court rulings or for their lawyer's failures.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has shown sufficient cause to warrant extension of time under Rule 4 of the Court of Appeal Rules to file and serve a Notice of Appeal and record of appeal
- 2.Whether the delay of 62 days was adequately explained
- 3.Whether the respondent would suffer real prejudice if the extension is granted
- 4.Whether the intended appeal has chances of success
Key legal issues
#Whether the applicant explained the delay in filing the Notice of Appeal
The applicant made efforts to obtain the typed ruling from the Deputy Registrar from 15th March 2013 and only received it on 8th April 2013; her failure to file the Notice of Appeal within 14 days is attributable to the unavailability of the ruling, and she was not indolent.
The court found the applicant wrote twice for a copy of the ruling which was retained in the judge's chambers for typing. Having made those efforts, she required the ruling to decide whether to appeal. Although no certificate of delay existed and no request for proceedings was shown to have been served, the total delay of 62 days was within the period stipulated for filing the record of appeal had the Notice been filed. The applicant should not be penalized for her counsel's failures.
Whether the respondent would suffer prejudice from the extension
No real prejudice would be suffered; the applicant resides on the suit property with her children and sisters, and the balance of convenience favours the applicant.
Applying the principle from Mwaniki Njoroge Kamau v Lee Sheth Poong, the court weighed the applicant's circumstances against any likely prejudice. The dispute is a succession matter over land, in which the applicant and her sisters were excluded from distribution of their late father's estate. The court held it is in the best interests of justice that the dispute be canvassed so as to bring it to finality, and found no real prejudice to the respondent.
Legal principles established
#- In deciding whether to extend time under Rule 4, the court considers 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 party should not be denied a determination of a claim on its merits because of procedural default unless the default causes prejudice to the opponent which costs cannot compensate.
Court orders
#- 1.Time for filing and serving the Notice of Appeal and the record of appeal extended by fourteen (14) days from the date of the order
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules 2010 (extension of time discretion)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, I will exercise my unfettered discretion to allow the application. I order that the time for filing and serving of the Notice of Appeal and the record of appeal is hereby extended by fourteen (14) days from the date hereof.
It is now settled that the decision whether or not to extend the time for appealing is essentially discretionary.
I am willing to concede that the applicant has not been indolent, and ought not to be penalized for the failures on the part of her counsel.
The matter in issue relates to land to which both parties make claim. It is in the best interest of justice that the dispute be canvassed before this court so as to bring the matter to its final end
Issues in the judgment
#The parties are inconsistently identified: the deponent of the supporting affidavit is described as the applicant, yet an affidavit 'sworn by the respondent, Margaret Chepkorir Charito' opposes the application, leaving the exact party names unclear.
The dates of the reminder letter to the Deputy Registrar are inconsistent: submissions refer to a request on 23rd March 2013 while the judgment's own narrative refers to a reminder on 25th March 2013.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chebet Kimugai v Margaret Chepkikor Charito [2015] KECA 608 (KLR)", Case Analysis (2015). Civil Application (Eldoret) - Notice of Motion dated 13th May 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/608/eng@2015-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.