Peter Mburu Njoroge v Barclays Bank of Kenya Ltd [2018] KECA 45 (KLR)
The bottom line
#Kenya's Court of Appeal refused a guarantor extra time to appeal because he gave no proof for his delay and showed no arguable grounds.
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 applicant should be granted leave to file his intended appeal out of time, having regard to the length of and reasons for the delay, the arguability of the appeal and prejudice to the respondent
Key legal issues
#Whether the delay in filing the intended appeal and the application for extension of time was satisfactorily explained
No: the applicant failed to substantiate the claim that the court file went missing, took over 8 months after the certificate of delay to move the Court, and over two months after the High Court declined jurisdiction, without material explanation.
The applicant attributed the delay to a missing court file, financial hardship and the death of his brother, but produced no supporting material for any of these claims. The proceedings were ready and a certificate of delay issued on 28th September 2016, yet the application was filed on 6th June 2017. Unsubstantiated assertions do not discharge the applicant's burden of explaining the delay.
Whether the intended appeal had disclosed arguable grounds
No: the intended grounds of appeal were not disclosed; the applicant relied only on the certificate of delay's remark that the judgment was contradictory and a general averment of irreparable loss.
In assessing the chances of the appeal succeeding, the court examined the intended grounds and found them undisclosed. The court also noted the existence of other litigation between the same parties over the same subject matter, HCCC No. 2134 of 1992 and HCCC No. 2052 of 1989, which bore on whether the intended appeal should be entertained.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary and involves consideration of the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent; the categories of factors are not closed.
- An applicant for extension of time must substantiate the reasons for delay with material; mere assertion, including a claim that a court file went missing, unsupported by letters or an application for reconstruction of the file, will not suffice.
- An applicant for extension of time must disclose arguable grounds of appeal, not merely assert that he will suffer irreparable loss.
Court orders
#- 1.Dismissal of the applicant's application dated 5th May 2017 and filed on 6th June 2017 seeking extension of time to file his appeal
- 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
- Jurisdiction invoked
- Inherent jurisdiction of the Court of Appeal to extend time for filing an appeal (single judge sitting), per the framework in Leo Sila Mutiso v Rose Hellen Wangari Mwangi
Relief refused
#Order allowing the applicant to file his appeal out of time
Unexplained delay, lack of substantiation of the reasons advanced, non-disclosure of arguable grounds of appeal, and other litigation between the same parties over the same subject matter
Costs
Costs of the application awarded 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.
… the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.
The categories of factors to be considered are not closed and the Court is entitled to consider any other relevant factors.
I accordingly dismiss the applicant’s application dated 5th May 2017 and filed in court on 6th June 2017 with costs to the respondent.
Issues in the judgment
#The judgment records that the typed proceedings were ready on 10th September 2015, yet also states the Deputy Registrar notified the parties of readiness by a letter dated 20th September 2016 - an apparent internal inconsistency in dates.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Mburu Njoroge v Barclays Bank of Kenya Ltd [2018] KECA 45 (KLR)", Case Analysis (2018). Civil Application dated 5th May 2017 (filed 6th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/45/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.