Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNotice of Motion dated 20th June, 2016· [2017] KECA 559 (KLR)

Ezekiel Mwenja Ngure v Sammy Kipkorir Seroney & 3 others [2017] KECA 559 (KLR)

Court of Appeal of Kenya
27 April 2017
1,951 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to extend time to appeal because the applicant couldn't show he personally followed up on his case after blaming his former advocates.

What this practically means

#

Executive summary

#
This was a single-judge application under Rule 4 of the Court of Appeal Rules seeking leave to lodge a Notice of Appeal and Record of Appeal out of time in an appeal from a High Court judgment delivered on 22nd September 2010. The applicant filed a Notice of Appeal timeously on 27th September 2010 but failed to lodge the record within the 60 days required by Rule 82, and on 14th April 2016 the Court (Nambuye, Okwengu & Kiage, JJ.A.) deemed the notice of appeal withdrawn. The applicant blamed his former advocates, M/s Karanja-Mbugua & Company, for failing to follow up the typed proceedings. The respondents opposed, citing inordinate delay and prejudice, the matter having been pending for many years. Applying the settled Rule 4 principles from Mutiso v Mwangi, Mwangi v Kenya Airways Ltd and Fakir Mohammed v Joseph Mugambi, J. Mohammed, JA held that the discretion is unfettered but must be anchored on a plausible and satisfactory explanation for the delay. The record showed the advocates had requested typed proceedings in 2010 and the proceedings were ready by May 2014, yet no steps were taken; the applicant produced no evidence of personal follow-up, and the application was itself filed over two months after the notice was deemed withdrawn. The court found no excusable reason or special circumstances, dismissed the motion with costs to the respondents, and declined to exercise its discretion in the applicant's favour.

Key legal issues

#
01

Whether the delay in lodging the appeal was reasonably and satisfactorily explained

Holding

The explanation was not excusable; the applicant adduced no evidence of any step taken to follow up the appeal, and the application was itself filed over two months after the notice of appeal was deemed withdrawn.

Reasoning

Although advocates requested typed proceedings on 29th September 2010 and the proceedings were ready by 22nd May 2014, no steps followed. There was no letter from the applicant to his advocates inquiring about progress. Blaming previous advocates without evidence of personal diligence does not constitute sufficient reason, and the application was filed over two months after the 14th April 2016 ruling deeming the notice of appeal withdrawn.

p. 4
02

The principles governing exercise of discretion under Rule 4 of the Court of Appeal Rules

Holding

The discretion is unfettered but must be exercised judicially; relevant factors include period and reason for delay, chances of appeal success, and prejudice to the respondent.

Reasoning

Following Mutiso v Mwangi, Mwangi v Kenya Airways Ltd and Fakir Mohammed v Joseph Mugambi, the court confirmed that the factors are relevant but not exhaustive, and that it is upon the applicant to explain to the satisfaction of the Court that he is entitled to the discretion being exercised in his favour.

p. 3

Legal principles established

#
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's discretionary favour under Rule 4; the applicant must place sufficient material before the Court explaining the delay.
  • The right of appeal must be balanced against the respondent's right to enjoy the fruits of the judgment in his favour.

Court orders

#
  1. 1.Dismissal of the Notice of Motion dated 20th June, 2016
  2. 2.Costs of the application awarded to the respondents

Authorities

#

Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82
  • Appellate Jurisdiction ActSections 3, 3A & 3B
  • Constitution of KenyaSections 1, 2, 3(1), 10, 22(1), 27, 50 and 259

Cases cited (5)

  • MUTISO V. MWANGI
    Civil Application No. 255 of 1997 (UR)
  • MWANGI V. KENYA AIRWAYS LTD
    {2003} KLR 486
  • FAKIR MOHAMMED V. JOSEPH MUGAMBI & 2 OTHERS
    Civil Application No. Nai. 332/04 (unreported)
  • M/S PORTREITZ MATERNITY V. JAMES KARANGA KABIA
    Civil Appeal No. 63 of 1997
  • MONICA MALEL & ANOR V. R
    Eldoret Civil Appln No. NAI 246 of 2008
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules; Sections 3, 3A & 3B of the Appellate Jurisdiction Act (Cap. 9); Sections 1, 2, 3(1), 10, 22(1), 27, 50 and 259 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Ezekiel Mwenja Ngure v Sammy Kipkorir Seroney & 3 others [2017] KECA 559 (KLR)", Case Analysis (2017). Notice of Motion dated 20th June, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/559/eng@2017-04-27

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