Sam Kiplagat & Nation Newspapers v Charles Wanjohi Wathuku (Civil Application 45 of 2016) [2017] KECA 572 (KLR)
The bottom line
#The Court of Appeal refused to excuse a 17-month delay in filing an appeal record, showing Kenyan courts punish unexplained inaction even in defamation cases.
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 applicants should be granted an extension of time under Rule 4 to file and serve a record of appeal out of time
- 2.Whether the applicants gave a reasonable explanation for the inordinate delay
- 3.Whether Sections 3A and 3B of the Appellate Jurisdiction Act (overriding objective/Oxygen principle), not pleaded in the motion, could be invoked to excuse the delay
Key legal issues
#Application of Rule 4 discretion to extend time
The discretion is unfettered but must be exercised on relevant, material factors; the applicants' delay of about one year and five months was largely unexplained after the stay-negotiation period ended in November 2015
The court recounted the settled Rule 4 factors (delay, reasons, chances of appeal, prejudice) as adopted in Fakir Mohamed and Habo Agencies, and found the applicants had done nothing between November 2015 and July 2016 despite having collected proceedings in September 2015 and despite a pending application to strike out their notice of appeal.
Invocability of the overriding objective (Sections 3A and 3B, Appellate Jurisdiction Act) where not pleaded
Sections 3A and 3B could not be relied upon because they were not pleaded in the motion, and in any event would not avail parties who blatantly abuse the Rules of Court
Citing the Supreme Court in Obado and Kiage JA in Salat, the court held that Article 159(2)(d) is not a panacea for procedural shortfalls and courts must not provide succour to parties with scant respect for rules and timelines; the right to enjoy the fruits of judgment must be balanced against the right of appeal.
Diligence expected of a litigant seeking to preserve an intended appeal
A diligent litigant applies for certified proceedings, copies correspondence to the respondent's counsel, and obtains a certificate of delay so that the proviso to Rule 82(1) can avail them
The court noted the applicants filed and served a notice of appeal but made no further efforts; the letter bespeaking copies was not copied to the respondent's counsel and no certificate of delay was obtained - actions that would have shown a live intention to appeal and endeared them to a court of equity.
Legal principles established
#- The discretion under Rule 4 to extend time is unfettered and is exercised on relevant factors including period and reason for delay, chances of the appeal succeeding, and prejudice to the respondent
- Article 159(2)(d) and the overriding objective are not a licence to disregard rules of procedure and timelines; extension of time requires material on which the court can exercise its discretion
Court orders
#- 1.The notice of motion dated 28th June 2016 seeking extension of time to file and serve the record 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
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time); Sections 3A and 3B of the Appellate Jurisdiction Act (overriding objective) discussed
Relief refused
#Extension of time to file and serve the record of appeal out of time
Inordinate and unexplained delay of over a year after collection of proceedings; no evidence of diligence such as applying for a certificate of delay or copying letters to the respondent's counsel; overriding objective provisions not pleaded and in any event inapplicable to a blatant abuse of the Rules
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.
I decline to exercise my discretion in favour of the applicants and reject their application. It is dismissed with costs.
The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion
Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules.
The overriding objective thus confers on this court considerable latitude in the interpretation of the law and rules made thereunder, and in the exercise of its discretion always with a view to achieving any or all the attributes of the overriding objective.
It is not enough to point out that the decretal amount is available whilst trashing the Rules of Court. It is prejudicial to the respondent who has a right to enjoy the fruits of his judgment as much as the applicants have a right of appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sam Kiplagat & Nation Newspapers v Charles Wanjohi Wathuku (Civil Application 45 of 2016) [2017] KECA 572 (KLR)", Case Analysis (2017). Not stated in judgment (Civil Application ruled on 5 April 2017 at Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/572/eng@2017-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.