James Waweru Muturi v Paul Thuo Njambi [2017] KECA 228 (KLR)
The bottom line
#The Court of Appeal refused a lawyer more time to appeal because he lied to the court about when he learned of the ruling against him.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted an extension of time to file a notice of appeal out of time against the ruling of the Environment and Land Court delivered on 9th May 2017
- 2.Whether the applicant gave a candid and honest explanation for the failure to file a notice of appeal within the prescribed 14 days
Key legal issues
#Whether lack of candour disentitles an applicant to the equitable remedy of extension of time
Yes. Where the applicant's affidavits contain contradictory and untruthful accounts of when and how he learnt of the ruling, the Court may refuse extension of time outright.
The Court found five indicia of dishonesty: the applicant vacated the suit premises immediately upon service of the order; he gave inconsistent dates for learning of the ruling; he refused to produce a purported email on confidentiality grounds while freely producing other emails; he and his advocate misstated the calendar regarding a Sunday meeting; and he fabricated evidence of adjourned ruling dates. Candour being a precondition of equity, the discretionary remedy was denied.
The considerations governing an application for extension of time
Extension of time is discretionary and equitable; the applicant must explain the delay to the Court's satisfaction and act promptly, honestly and equitably.
Relying on Salat (Supreme Court) and other authorities, the single judge restated that the power must be exercised judicially on facts and reason, not capriciously; the applicant bears the onus of laying a basis for the Court's satisfaction, and delay must be explained to the Court's satisfaction.
Legal principles established
#- Extension of time is a discretionary and equitable power that must be exercised judicially, and is available only to a candid, honest and deserving applicant.
- An applicant for extension of time must act equitably and be candid and honest with the Court; untruthfulness or an attempt to mislead the Court disqualifies the applicant.
Court orders
#- 1.The application for extension of time to file a notice of appeal is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Rule 75(2) of the Court of Appeal Rules (inherent discretion to extend time under the Court of Appeal Rules)
Relief refused
#Extension of time to file a notice of appeal out of time
The applicant was found to have been less than candid with the Court, having known of the ruling upon service of the order on 19th May 2017, and an equitable remedy is unavailable to a party who does not act equitably
Costs
Application dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Suffice to emphasize that extension of time is a discretionary power which must be exercised judicially on the basis of the facts and reason, and not whimsically or capriciously.
It is incumbent upon such applicant to be candid and honest. He should not be untruthful or try to mislead the Court.
I find this application to be wholly bereft of merit and dismiss the same with costs to the respondent.
Issues in the judgment
#The judgment variously refers to the decision under challenge as a ruling of the ELC and later as a ruling of the 'ELRC'
The applicant is referred to inconsistently as 'applicant' and 'appellant' within the judgment, including in the disposition
The case number of this application is not stated in the judgment as provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Waweru Muturi v Paul Thuo Njambi [2017] KECA 228 (KLR)", Case Analysis (2017). Civil Application No. Nai. 179 of 2017 (unreported on the face of the judgment; application for extension of time). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/228/eng@2017-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.