Leah Wambui Kuria & 2 others v Jame Muchumu & another; Charles Thuo Muchunu & 4 others (Interested Parties) [2018] KECA 44 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants offered a sufficient explanation for the 595-day delay in filing the application for extension of time
- 2.Whether the further delay of 94 days between dismissal of the review application and filing of the instant application was explained
- 3.Whether the respondents would suffer prejudice if extension of time were granted
- 4.Whether the intended appeal was arguable / had chances of success
- 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
#Whether mistake of counsel in advising pursuit of review instead of appeal is a sufficient explanation for delay
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
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.
Whether the further 94-day delay after dismissal of review was explained
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
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.
Whether multiplicity of suits and appeals over the same subject matter justified refusing extension
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
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'.
Whether prejudice to the respondents was demonstrated
The applicants, who bore the burden of showing the respondents would suffer no prejudice, failed to demonstrate this to the court's satisfaction
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.
Legal principles established
#- 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
#- 1.Leave to extend time to file and serve a Notice of Appeal against the Ruling delivered on 20th June 2016 is declined
- 2.The Notice of Motion dated 30th April 2018 is dismissed
- 3.Each party is to bear his/her own costs in the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
Each party is to bear his/her costs in the application
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 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.
It is not sufficient to make vague and general assertion of prejudice without a prima facie demonstration thereof.
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.
I do not think the fact that an appeal appears likely to succeed can of itself amount to ‘sufficient reason."
the withdrawal does not preclude the filing of a new Notice of Appeal so long as it is done timeously.
Issues in the judgment
#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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.