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Court of AppealDismissedNotice of Motion dated 30th April 2018 (Civil Application)

Leah Wambui Kuria & 2 others v Jame Muchumu & another; Charles Thuo Muchunu & 4 others (Interested Parties) [2018] KECA 44 (KLR)

Court of Appeal of Kenya
20 December 2018
4,151 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to extend time to appeal because the applicants couldn't explain a further 94-day delay, show no prejudice, or avoid multiple parallel suits.

What this practically means

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Executive summary

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This is a ruling by a single Judge of Appeal (Otieno-Odek, JA) on a Notice of Motion dated 30th April 2018 seeking extension of time to file and serve a Notice of Appeal against a High Court Ruling of 20th June 2016 in a succession dispute over the distribution of the estate of the late Robert Muchunu Mumbura and Milka Nduta Muchunu. The applicants had filed a Notice of Appeal in June 2016 but, on their counsel's advice, withdrew it and pursued a review application, which was dismissed on 5th February 2018; they then sought extension of time, some 595 days after the ruling. Applying the Salat guidelines and the Leo Sila Mutiso factors, the court accepted that honest reliance on mistaken advice of counsel was a sufficient explanation for the bulk of the delay. However, the applicants offered no explanation for a further 94-day delay following dismissal of the review, failed to demonstrate that the respondents would suffer no prejudice, attached no draft memorandum of appeal, and were already litigating the same subject matter in a pending appeal against the review dismissal, an Originating Summons at Kiambu and a suit at the Thika Environment and Land Court. The court held that granting extension in these circumstances would be an abuse of process amounting to a repeated 'bite of the cherry', declined to exercise its discretion, dismissed the motion, and ordered each party to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants offered a sufficient explanation for the 595-day delay in filing the application for extension of time
  2. 2.Whether the further delay of 94 days between dismissal of the review application and filing of the instant application was explained
  3. 3.Whether the respondents would suffer prejudice if extension of time were granted
  4. 4.Whether the intended appeal was arguable / had chances of success
  5. 5.Whether the multiplicity of pending suits and appeals over the same subject matter rendered the application an abuse of court process

Key legal issues

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01

Whether mistake of counsel in advising pursuit of review instead of appeal is a sufficient explanation for delay

Holding

The applicants' honest reliance on mistaken professional advice to withdraw the Notice of Appeal and pursue review was accepted as an honest and sufficient explanation for the bulk of the 595-day delay

Reasoning

Relying on local and comparative authorities including Sabiiti Kachope (Uganda) and Phillip Chemwolo, the court accepted that errors by counsel are not fatal absent dilatory conduct, since a party should not be penalised for a lawyer's mistake. This satisfied only part of the Salat guidelines, however, as the further post-review delay remained unexplained.

p. 4
02

Whether the further 94-day delay after dismissal of review was explained

Holding

No explanation was offered for the additional delay of 94 days between 5th February 2018 and 10th May 2018, which independently justified refusal of the extension

Reasoning

Following County Executive of Kisumu, the court held that once a review application is dismissed, the applicant must promptly seek extension of time and explain any interval. The applicants' affidavit and motion were silent on this period, breaching the burden of laying a basis to the court's satisfaction.

p. 5
03

Whether multiplicity of suits and appeals over the same subject matter justified refusing extension

Holding

With a pending appeal against the review dismissal, an Originating Summons in Kiambu and a suit at the Thika ELC over the same estate, granting extension would be an abuse of process

Reasoning

The court observed that the same parties were litigating the same distribution dispute before multiple forums, and that success of the existing appeal against review dismissal would already reopen the 20th June 2016 ruling. Granting extension would permit the applicants to 'bite the cherry' repeatedly and embroil the court in a 'ping pong merry go round'.

p. 5
04

Whether prejudice to the respondents was demonstrated

Holding

The applicants, who bore the burden of showing the respondents would suffer no prejudice, failed to demonstrate this to the court's satisfaction

Reasoning

The court held that an applicant for extension must lay a factual basis for prejudice; neither party did so. The applicants' complaints about distribution of estate assets and the Bill of Costs pertained to a stay application, not extension of time, and could not substitute for proof of absence of prejudice.

p. 5

Legal principles established

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  • A party who seeks extension of time bears the burden of laying a basis to the satisfaction of the court and must demonstrate both the prejudice they would suffer without extension and that the respondent will suffer no prejudice if extension is granted; vague assertions are insufficient
  • A notice of withdrawal of an appeal takes effect upon service and terminates the intended appeal, but does not preclude filing a new Notice of Appeal if done timeously
  • The likelihood that an appeal will succeed cannot of itself constitute sufficient reason for extension of time
  • An additional or further delay beyond the initial delay must itself be sufficiently explained before extension of time can be granted

Court orders

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  1. 1.Leave to extend time to file and serve a Notice of Appeal against the Ruling delivered on 20th June 2016 is declined
  2. 2.The Notice of Motion dated 30th April 2018 is dismissed
  3. 3.Each party is to bear his/her own costs in the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya
Jurisdiction invoked
Inherent/appellate discretion of a single Judge of Appeal to extend time to file and serve a Notice of Appeal under the Court of Appeal Rules

Relief refused

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Extension of time to file and serve a Notice of Appeal against the High Court Ruling of 20th June 2016

Unexplained further delay of 94 days after dismissal of the review application, failure to demonstrate absence of prejudice to the respondents, absence of a draft memorandum of appeal, and the multiplicity of pending suits rendering extension an abuse of process

p. 5

Costs

Each party is to bear his/her costs in the application

Quotable passages

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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 grant leave to extend time to file and serve a Notice of Appeal against the Ruling delivered on 20th June 2016. Accordingly, the Notice of Motion dated 30th April 2018 be and is hereby dismissed. Each party is to bear his/her costs in the application.
p. 5Final orders - dismissal of the extension application
It is not sufficient to make vague and general assertion of prejudice without a prima facie demonstration thereof.
p. 5Burden of demonstrating prejudice in extension-of-time applications
In view of these various pending suits, it portends an abuse of court process to exercise my discretion to grant extension of time to litigate the same issue before different courts.
p. 5Abuse of process through multiplicity of suits
I do not think the fact that an appeal appears likely to succeed can of itself amount to ‘sufficient reason."
p. 5Arguability of appeal is not alone sufficient reason for extension
the withdrawal does not preclude the filing of a new Notice of Appeal so long as it is done timeously.
p. 3Effect of withdrawal of Notice of Appeal

Issues in the judgment

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minor

Paragraph numbering is irregular - paragraphs 27 to 29 are followed by paragraph 27 again, and paragraph 25 appears after paragraph 24 but after 26-30 in sequence, indicating a misordered or duplicated numbering in the judgment

minor

The 1st respondent's replying affidavit is recorded as conceding a Notice of Appeal 'dated 20th June 2016' whereas the applicants' own account and paragraph 3 state the Notice of Appeal was dated 21st June 2016 - a date discrepancy within the judgment

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, "Leah Wambui Kuria & 2 others v Jame Muchumu & another; Charles Thuo Muchunu & 4 others (Interested Parties) [2018] KECA 44 (KLR)", Case Analysis (2018). Notice of Motion dated 30th April 2018 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/44/eng@2018-12-20

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