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Court of AppealDismissedCivil Application (Eldoret)· [2016] KECA 705 (KLR)

Samuel Ndura Kanyara v Mary Njambi Kariuki [2016] KECA 705 (KLR)

Court of Appeal of Kenya
10 March 2016
DMD. K. Musinga
1,341 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a late appeal because a year of unexplained delay, no draft appeal, and 23 years of waiting prejudiced the other side.

What this practically means

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Executive summary

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This was a single-judge application under rule 4 of the Court of Appeal Rules, 2010, in which the applicant, acting in person, sought enlargement of time to file and serve a notice of appeal and record of appeal arising from a ruling of Kimondo, J. delivered on 7th October, 2014. The litigation had a long and tangled history: the applicant's suit in CMCC No. 249 of 1989 seeking a quarter-acre plot was dismissed in November 1993; successive appeals and applications were summarily rejected or struck out by Aganyanya, Ibrahim and Azangalala, JJ.; and there was confusion between Civil Appeal Nos. 144 and 152 of 1993, which the court attributed partly to a possible mix-up at the court registry. Musinga, JA restated the rule 4 factors: length of delay, reasons for the delay, chances of success of the intended appeal, and prejudice to the respondent, applying African Airlines International Ltd v Southern African Trade Development Bank. The applicant failed to explain the delay between October 2014 and October 2015, annexed no draft memorandum of appeal to demonstrate arguability, and the respondent would be prejudiced given that nearly 23 years had elapsed since the impugned judgment. Although sympathetic to the challenges faced by a lay litigant, the judge dismissed the application and ordered each party to bear its own costs. The decision affirms that inordinate and unexplained delay, absence of a draft memorandum, and prejudice to the respondent are independently sufficient grounds to refuse extension of time.

Key legal issues

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01

Whether extension of time should be granted under rule 4

Holding

The application was dismissed because the delay was unexplained, no draft memorandum of appeal was annexed to assess the chances of success, and the respondent would be prejudiced after nearly 23 years.

Reasoning

The court restated the established rule 4 factors: length of delay, reasons for delay, arguability of the intended appeal and prejudice to the respondent. The applicant, acting in person, filed a jumbled application that confused two appeal numbers and did not explain the delay between 7th October 2014 and 15th October 2015. He attached no draft memorandum of appeal, so the court could not form a prima facie view of the appeal's merits. The extreme age of the underlying dispute weighed decisively against the applicant despite the court's sympathy.

p. 3

Legal principles established

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  • In exercising discretion under rule 4 of the Court of Appeal Rules, the court must consider the length of the delay, the reasons for the delay, the chances of success of the intended appeal, and the prejudice to the respondent.

Court orders

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  1. 1.The application for extension of time is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4

Cases cited (1)

  • AFRICAN AIRLINES INTERNATIONAL LIMITED V SOUTHERN AFRICAN TRADE DEVELOPMENT BANK
    [2003] KLR 140
On appeal from
High Court of Kenya
Civil Appeal No. 152 of 1993 (ruling of Kimondo, J. dated 7th October, 2014)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010

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, "Samuel Ndura Kanyara v Mary Njambi Kariuki [2016] KECA 705 (KLR)", Case Analysis (2016). Civil Application (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/705/eng@2016-03-10

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