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Court of AppealDismissedNotice of Motion dated 19th October 2016 (arising from Embu H.C. ELC No. 26 of 2014)· [2017] KECA 427 (KLR)

Ephantus Stanley Njagi Moko v Monica Ruguru Njiru [2017] KECA 427 (KLR)

Court of Appeal
7 June 2017
GKG. B. M. Kariuki
2,008 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant gave vague, conflicting reasons for a two-year delay — honesty and detail matter.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nyeri on a notice of motion dated 19th October 2016 by Ephantus Stanley Njagi Moko, the unsuccessful 1st defendant in Embu ELC No. 26 of 2014, in which Monica Ruguru Njiru obtained eviction orders from J. M. Bwonwonga, J., on 19th November 2014. The applicant sought extension of time under Rule 4 of the Court of Appeal Rules to file a notice of appeal and appeal almost two years after judgment, plus a stay of execution. He attributed the delay to his advocates' failure to notify him of the judgment, illness, and lack of funds. The respondent opposed, contending the decree had been executed and the land reconveyed to her, that the application was lodged by strangers to the suit, and that no notice of appeal had been filed. G. B. M. Kariuki, JA, restated the principles governing Rule 4: the discretion is unfettered but must be exercised judicially, considering the length of and reasons for the delay, arguability of the appeal, prejudice, public interest and the interest of justice under Article 48 and the overriding objective. The Court found the applicant's explanations conflicting and unparticularised, noting he failed to give dates for notification, illness, recovery, or engagement of new advocates, and was therefore not candid. His assertion of an arguable appeal was unsupported by facts, and the executed decree and occupation of the land by the respondent meant stay of eviction could not be adequately compensated by costs. The application was dismissed with costs to the respondent.

Key legal issues

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01

Exercise of discretion under Rule 4 to extend time

Holding

The discretion is unfettered but must be exercised judicially in the interest of justice; the Court's policy is to sustain an appeal where the delay is neither unreasonable nor culpable.

Reasoning

Rule 4 confers an unfettered discretion to extend time, but it must be exercised judicially. The existence of the Rule acknowledges human fallibility. Relevant factors include length and reason for delay, arguability of the appeal, prejudice, public interest and the overriding objective under the Appellate Jurisdiction Act and Article 48 of the Constitution.

p. 3
02

Candour and material non-disclosure by the applicant

Holding

The applicant gave conflicting explanations and withheld particulars of his illness and impecuniosity, failing the candour required for extension of time.

Reasoning

The applicant proffered conflicting reasons: illness and lack of funds on one hand, and his advocates' failure to notify him on the other. He gave no dates for notification, illness, recovery, or change of advocates, and did not state why the application was not made earlier. The onus was on him to place all material facts before the Court.

p. 3
03

Arguability of the intended appeal and prejudice

Holding

The applicant failed to demonstrate that the appeal was not a non-starter, and the executed decree and eviction made stay inappropriate.

Reasoning

The applicant merely asserted an arguable appeal without stating facts. Counsel did not address the fact that the decree had been executed and the land reconveyed to the respondent who resides on it. Stay of eviction cannot be redressed by costs, and the applicant withheld documents on the status of the land's registration and occupation.

p. 4

Legal principles established

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  • In deciding whether to extend time the Court considers the length of delay, reasons for delay, arguability of the appeal, prejudice, public interest and the interest of justice.
  • An applicant seeking extension of time must be candid; deliberately misleading the Court on the facts of the delay disentitles him of the discretion.
  • It is not enough to assert arguability; the applicant must plead facts demonstrating it and show no uncompensatable prejudice.

Court orders

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  1. 1.The application is dismissed on the ground that it has no merit whatsoever
  2. 2.The applicant shall pay to the respondent the costs of the application

Authorities

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Legislation

  • The Constitution of KenyaArticle 48
  • Appellate Jurisdiction Act (Cap 9)Section 3A(1)
  • Appellate Jurisdiction Act (Cap 9)Section 3B(1)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 82(1) (proviso)
On appeal from
Environment and Land Court at Embu
Suit No. 26 of 2014
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, with Section 3A(1) of the Appellate Jurisdiction Act (Cap 9) and Article 48 of the Constitution

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, "Ephantus Stanley Njagi Moko v Monica Ruguru Njiru [2017] KECA 427 (KLR)", Case Analysis (2017). Notice of Motion dated 19th October 2016 (arising from Embu H.C. ELC No. 26 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/427/eng@2017-06-07

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