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Court of AppealDismissedCivil Application (Eldoret)· [2015] KECA 611 (KLR)

Esther Ngendo v Sarattha Investment & 4 others [2015] KECA 611 (KLR)

Court of Appeal of Kenya
26 May 2015
AMA.K. Murgor
2,057 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to extend time to file an appeal record because no valid Notice of Appeal existed and the 279-day delay was unexplained.

What this practically means

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Executive summary

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This was a single-judge application before the Court of Appeal at Eldoret under Rule 4 of the Court of Appeal Rules, 2010, in which Esther Ngendo, an adverse-possession litigant whose Originating Summons was dismissed by Munyao Sila J on 26th February 2013, sought extension of time to lodge and serve a record of appeal. The applicant attributed the 279-day delay to illness, lack of funds, and delay by the Deputy Registrar in supplying proceedings. The respondents, through the replying affidavit of Mansoorali Sorathia, denied service of the Notice of Appeal and challenged the credibility of the illness and impecuniosity claims, noting she had attended court for taxation. The Court, following Leo Sila Mutiso v Rose Hellen Wangari Mwangi, applied the settled four-factor test: length of delay, reasons for delay, chances of success, and prejudice. Critically, the Court found the Notice of Appeal dated 11th February 2013 was not stamped, showed no evidence of lodgement, and was never served as Rule 76(1) requires; the motion itself sought only enlargement of time for the record, not for a Notice of Appeal. Following Simon Muruchi Thiga v Nation Newspapers Ltd, the Court held it futile to extend time for filing a record of appeal where no valid Notice of Appeal exists. On the merits of the delay, the Court found the illness unparticularised and unsupported by medical evidence, the financial constraints unsubstantiated with no invocation of Rule 117, and no certificate of delay to excuse the Registry. The application was dismissed with costs.

Key legal issues

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01

Existence of a valid Notice of Appeal as a precondition

Holding

Without a subsisting Notice of Appeal, or an application for leave to file one out of time, an application to extend time for filing the record of appeal must fail

Reasoning

The Notice of Appeal on record was dated 11th February 2013 but was not stamped, bore no evidence of lodgement with the Registrar, and was never served on the respondents as required by Rule 76(1). The motion only sought extension for the record of appeal. Following Thiga v Nation Newspapers, extending time where no valid notice exists would be an exercise in futility.

p. 3
02

Explanation for the delay

Holding

The applicant failed to substantiate the claimed illness and financial constraints, and in the absence of a certificate of delay the delay could not be attributed to the Registry

Reasoning

The delay totalled 279 days. No certificate of delay was obtained. Illness was unsupported by particulars, treatment notes or medical receipts, and no evidence showed incapacity to communicate with counsel. Impecuniosity was unsubstantiated and Rule 117, which provides relief for financial hardship, was never invoked. Discretion is exercised upon reason, not sympathy.

p. 4

Legal principles established

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  • Extension of time under Rule 4 is discretionary and must be exercised judiciously considering the length of delay, reasons for delay, chances of success and prejudice to the respondent
  • Extension of time for filing a record of appeal is futile where no valid Notice of Appeal exists and no leave to file a fresh Notice of Appeal is sought
  • Rules of court must prima facie be obeyed; extension of time requires material on which the court can exercise its discretion, and discretion is exercised on reason not sympathy

Court orders

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  1. 1.The application by Notice of Motion dated 25th April 2014 is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 74
  • Court of Appeal RulesRule 76(1)
  • Court of Appeal RulesRule 81
  • Court of Appeal RulesRule 82(a)
  • Court of Appeal RulesRule 117
  • Constitution of KenyaArticle 159
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (6)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997
  • Simon Muruchi Thiga v Nation Newspapers Ltd
    Civil Application No. Nai. 137 of 2004
  • K and K Amman v Mount Kenya Game Ranch and others
    [2003] 1 EA 98 (CAK)
  • Grindlays Bank International (K) Ltd v George Barbuor
    Civil Application NAI. 257/95
  • Ratman v Camarasamy
    [1964] 3 ALL ER 933
  • Trade Bank Ltd (In liquidation) v L.Z. Engineering Construction Ltd & Another
    Civil Appl. No. NAI. 282/98
On appeal from
High Court of Kenya
Originating Summons filed 2nd July 2008 (Eldoret)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010; Article 159 of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act

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, "Esther Ngendo v Sarattha Investment & 4 others [2015] KECA 611 (KLR)", Case Analysis (2015). Civil Application (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/611/eng@2015-05-26

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