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Court of AppealDismissedMotion dated 18th August 2015 (Civil Application)· [2016] KECA 87 (KLR)

Attorney General v Kariuki Kingaru Murebu & 8 others [2016] KECA 87 (KLR)

Court of Appeal of Kenya
25 November 2016
PKP. O. Kiage
1,835 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to forgive the Attorney General's ten-month appeal delay, ruling that unexplained delays and indiffent conduct cost litigants their day in court.

What this practically means

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Executive summary

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The Attorney General applied under Rule 4 of the Court of Appeal Rules for an order deeming its notice of appeal, filed on 17th August 2015, properly on record, or alternatively for extension of time to lodge and serve it, against a judgment of Ndolo, J. of the Industrial Court delivered on 22nd October 2014 awarding each of the respondents Kshs. 8 million in general damages for alleged arrest, detention and torture following the 1982 attempted coup. The applicant explained that it had lost track of the case after its transfer from the High Court's Constitutional and Human Rights Division, that hearing notices had not reached counsel, and that registry staff errors caused its non-participation. The respondents opposed, contending the delay was inordinate and inexcusable, noting counsel for the applicant had attended taxation of costs in February 2015, and that aged respondents and deceased litigants' estates would be prejudiced. Kiage, JA restated the settled Rule 4 factors - length of delay, explanation, chances of success and prejudice - and added the applicant's candour and conduct. Finding conflicting explanations, an awareness of the judgment since February 2015, and a leisurely indifference to timelines, and noting the thirty-four-year-old cause of action and the need for litigation to end, the court dismissed the application with costs to the respondents. The judgment of the court below was not disturbed.

Key legal issues

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01

Principles governing extension of time under Rule 4

Holding

The discretion is wide and unfettered but judicial, guided by settled indicative factors: length of delay, explanation, chances of the appeal succeeding, and prejudice to the respondent, plus the applicant's conduct and candour.

Reasoning

Kiage, JA restated the principles from Mwangi v Kenya Airways Ltd, stressing that delay alone is not fatal but a plausible explanation is required. The discretion must not be exercised whimsically or capriciously, and he who seeks equity must do equity.

p. 3
02

Whether the explanation for the delay was plausible

Holding

No: the applicant offered conflicting explanations - claiming non-receipt of hearing notices while its own file showed documents stamped as received - and counsel had attended taxation of costs in February 2015, showing awareness of the judgment.

Reasoning

The court found the picture emerging was one of lethargy and indifference: over five months to prepare a notice of appeal after learning of the judgment, a month to file it, and two more to make the application. Such conduct did not deserve favourable discretion.

p. 4
03

Prejudice to the respondents and need for finality

Holding

The cause of action arose thirty-four years earlier; the respondents were aged and some had died, so further prolongation would be prejudicial and litigation must come to an end.

Reasoning

The court accepted the unchallenged contention that the respondents, ex-service personnel of the defunct Kenya Air Force suing over the 1982 attempted coup events, had suffered reputational harm and depreciation of awards with time, exemplifying the need for an end to litigation.

p. 4

Legal principles established

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  • The Court's discretion under Rule 4 is wide but judicial, guided by non-exhaustive indicative principles including length of delay, explanation for the delay, chances of the appeal succeeding and prejudice to the respondent, to which candour and fairness of the applicant's conduct may be added.
  • It is permissible in the Court of Appeal to file a notice of appeal out of time and then seek regularisation under Rule 4, since the rule permits extension whether before or after the act is done.

Court orders

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  1. 1.The application dated 18th August 2015 seeking extension of time to file and serve the notice of appeal is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (2)

  • MWANGI vs. KENYA AIRWAYS LTD
    [2003] KLR 486
  • MICHAEL MURIUKI NGIBUINI vs. EAST AFRICAN BUILDING SOCIETY
    [2016] eKLR
On appeal from
Employment and Labour Relations Court (formerly Industrial Court), Nairobi
Jurisdiction invoked
Inherent/appellate discretion under Rule 4 of the Court of Appeal Rules (extension of time for filing and serving notice of appeal)

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, "Attorney General v Kariuki Kingaru Murebu & 8 others [2016] KECA 87 (KLR)", Case Analysis (2016). Motion dated 18th August 2015 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/87/eng@2016-11-25

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