Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedMotion dated 1st October 2015 (Court of Appeal, Nyeri)· [2016] KECA 827 (KLR)

Mwathi Kaba & Another v David Murimi Muriuki & Another [2016] KECA 827 (KLR)

Court of Appeal of Kenya
3 February 2016
PKP. O. Kiage
1,184 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to forgive a two-year delay in filing an appeal because the applicants never explained why they were late.

What this practically means

#

Executive summary

#
This was a single-Judge ruling of the Court of Appeal at Nyeri (P.O. Kiage, JA) on a Motion dated 1st October 2015 under Rule 4 of the Court of Appeal Rules, 2010, seeking extension of time to file and serve a Notice of Appeal, Memorandum of Appeal and record of appeal, and deeming of a Notice of Appeal dated 18th October 2013 as properly filed and served. The intended appeal lay from a High Court judgment; the notice of appeal was lodged on 23rd October 2013, about 8 days outside the 14-day window. The applicants attributed the lapse to their former advocate without explaining the cause of the delay, and did not move to regularize until nearly two years later, despite having known of the infirmity since December 2013 when the respondents applied to strike out the notice. The respondents opposed, alleging inordinate, unexplained delay motivated by a wish to frustrate execution. The court restated the settled Rule 4 considerations - length of delay, cause of delay, possible merits, and prejudice - as indicative and non-exhaustive, the aim being to do justice between the parties. Finding no explanation for either the initial or the subsequent delay, and holding that merely blaming one's erstwhile advocate is not an explanation, the Judge concluded the applicants were undeserving of the discretionary relief and dismissed the Motion with costs, to be taxed if not agreed.

Key legal issues

#
01

Extension of time under Rule 4 of the Court of Appeal Rules

Holding

The application was dismissed because the applicants failed to explain either the initial 8-day delay in filing the notice of appeal or the subsequent inordinate delay of nearly two years in seeking to regularize it

Reasoning

The court reiterated the settled Rule 4 factors (length and cause of delay, possible merits, prejudice) as indicative and non-exhaustive, with the aim of doing justice between the parties. The initial delay of about 8 days was unexplained, evidencing indifference. The applicants knew of the defect from December 2013 when the respondents sought to strike out the notice, yet only moved in October 2015. Absent explanation, the court was bereft of material on which to exercise discretion.

p. 2

Legal principles established

#
  • The single Judge's discretion under Rule 4 to extend time is free and unfettered but judicial, to be exercised upon sound principle, guided by indicative (non-exhaustive) considerations: length of delay, cause of delay, possible merits, and prejudice to the respondent
  • Blaming a former advocate without an explanation for the delay does not constitute an explanation; discretion cannot be exercised in favour of an applicant who offers none

Court orders

#
  1. 1.The Motion is dismissed with costs, to be taxed if not agreed

Authorities

#

Legislation

  • Court of Appeal RulesRule 4
  • Constitution of Kenya, 2010Article 159

Cases cited (2)

  • B.O.G. HIGHWAY SEC. SCHOOL –VS- WILLIAM M’MOSI
    [2007] e KLR
  • MWANGI –VS- KENYA AIRWAYS
    [2003] KLR 486
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mwathi Kaba & Another v David Murimi Muriuki & Another [2016] KECA 827 (KLR)", Case Analysis (2016). Motion dated 1st October 2015 (Court of Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/827/eng@2016-02-03

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