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Court of AppealDismissedCivil Application No. 7 of 2015· [2017] KECA 21 (KLR)

M’mugambi Thiringi v M’birithia Githongo [2017] KECA 21 (KLR)

Court of Appeal
8 November 2017
GKG. B. M. KariukiFSF. SichaleSKS. ole Kantai
822 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive an appeal filed late, ruling that old age and poverty don't excuse unexplained delay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Kariuki, Sichale and Kantai, JJ.A) on a reference to the full bench arising from Waki, JA's ruling of 1st July 2015, delivered as a single judge, dismissing the applicant's motion under rule 4 of the Court's Rules for extension of time to file and serve a record of appeal from the High Court at Meru (Lesiit, J) in HCCA No. 54 of 2009. The applicant contended he had complied with the necessary pre-appeal procedures (request for judgment, memorandum of appeal, certificate of delay), that the Notice of Appeal could not have been filed without his instructions as he was unwell, and that the memorandum raised weighty issues. The full bench upheld the single judge's ruling. It noted the Notice of Appeal dated 13th November 2014 was never served on the respondent, the letter bespeaking proceedings was not copied to the respondent, and the 60-day period for filing the appeal lapsed on 13th January 2015, while the motion was not filed until 31st March 2015. The court agreed that the applicant's failings were largely unexplained, endorsed the view that old age and indigence are not considerations in an extension-of-time application, and stressed that litigation must come to an end, the suit having been in the judicial system for over 27 years. The reference was dismissed with costs.

Key legal issues

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01

Exercise of discretion in extension-of-time applications

Holding

The applicant's omissions in the appellate process (failure to serve the Notice of Appeal, failure to copy the request for proceedings to the respondent, expiry of the 60-day period) were largely unexplained, justifying refusal of extension of time

Reasoning

The court agreed with Waki, JA that the Notice of Appeal was not served, the letter bespeaking proceedings was not copied to the respondent, and the 60-day period for filing the appeal lapsed on 13th January 2015. The applicant's plea of old age and lack of money was immaterial to the discretion. Given that the suit had been in the judicial system for over 27 years, the discretion had to favour finality of litigation.

p. 2

Legal principles established

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  • Old age and indigence are not considerations to be taken into account in the Court's exercise of discretion in an application for enlargement of time
  • Litigation must come to an end; a successful litigant is entitled to enjoy the fruits of judgment, and unexplained delay in pursuing an appeal disentitles an applicant to enlargement of time

Court orders

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  1. 1.The reference is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4
On appeal from
High Court of Kenya at Meru
HCCA No. 54 of 2009
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application for extension of time), before the full bench on reference from a single judge's ruling

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, "M’mugambi Thiringi v M’birithia Githongo [2017] KECA 21 (KLR)", Case Analysis (2017). Civil Application No. 7 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/21/eng@2017-11-08

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