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Court of AppealDismissedNot stated in the judgment· [2018] KECA 62 (KLR)

W B O v C A O [2018] KECA 62 (KLR)

Court of Appeal of Kenya
23 November 2018
William OukoW. Ouko
826 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time for a delayed appeal because a two-year delay had no good explanation, so litigants must act fast after learning of a judgment.

What this practically means

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Executive summary

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This is a single-Judge decision of the Court of Appeal at Nairobi, delivered by W. Ouko, JA (President), on 23rd November 2018, on an application under Rule 4 of the Court of Appeal Rules for extension of time to lodge an appeal against a High Court judgment of Musyoka, J delivered on 11th December 2014, which ordered a 50:50 distribution of matrimonial properties. The judgment had been delivered in the absence of both parties, and the applicant learned of it from the respondent's counsel on 23rd July 2015. The applicant did not file the extension application until 24th October 2017 - some 2 years and 3 months after learning of the judgment - and did not serve it for a further 7 months. The court restated the settled Rule 4 principles: the length of and reasons for the delay, prejudice to the other party, and the arguability of the intended appeal. While acknowledging that the court itself was to blame for delivering judgment without notice, the judge held that this only excused delay up to 23rd July 2015; thereafter the applicant had to explain the delay, and settlement discussions together with an unprosecuted review application did not suffice. Doubting the strength of the intended appeal and finding that further delay would prejudice the respondent, who had been kept from the fruits of her judgment since December 2014 while the applicant collected substantial rental income, the court dismissed the motion with no orders as to costs.

Key legal issues

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01

Explanation for inordinate delay

Holding

Once the applicant was notified of the judgment on 23rd July 2015, the clock ran against him; attempts at settlement and a review application did not explain the 2 years and 3 months delay in filing the Rule 4 application

Reasoning

The court accepted that the High Court itself bore some blame for delivering judgment without notice to the parties. However, that blame only extended to the period before 23rd July 2015 when the respondent informed the applicant of the judgment. From that date, the applicant had to account for the delay in filing the extension application, and the explanations of settlement discussions and a review application filed on 2nd October 2015 were held insufficient.

p. 2
02

Arguability of the intended appeal and prejudice

Holding

The court doubted the strength of the intended appeal and was concerned that further delay would prejudice the respondent, who had waited since December 2014 for the fruits of the judgment

Reasoning

The Rule 4 test requires not only an explanation for delay but also an arguable appeal and an assessment of prejudice. The judge, without being definitive, expressed doubt about the appeal's chances and noted the respondent had been deprived of enjoying the judgment since December 2014 while the applicant continued collecting substantial income from the suit properties, said to amount to nearly Kshs. 24 million over four years.

p. 2

Legal principles established

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  • The single Judge under Rule 4 of the Court of Appeal Rules has unfettered discretion to extend time, exercised on the principles of length of delay, reasons for delay, prejudice to the other party and arguability of the appeal
  • Whether a delay is inordinate is a question of fact depending on the circumstances of each case; the applicant must give plausible reasons for the delay and demonstrate the appeal has a chance of success

Court orders

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  1. 1.The Notice of Motion seeking extension of time to lodge an appeal is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (2)

  • Leo Sila Mutiso V. Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997
  • Simon Towett Maritim V. Jotham Muiruri Kibaru
    Civil Application NAI 362 of 2004
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion of single Judge to extend time)

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, "W B O v C A O [2018] KECA 62 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/62/eng@2018-11-23

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