Muchangi Nduati Ngingo T/A Muchangi Nduati & Co. Advocates v Shepherd Group of Companies Limited & another [2018] KECA 65 (KLR)
The bottom line
#Kenya's Court of Appeal gave a lawyer extra time to appeal because no one told him judgment had been delivered against his client.
What this practically means
#Executive summary
#Key legal issues
#Whether delay was inordinate where the applicant was not served with notice of judgment
Delay was not inordinate because the applicant was not served with a notice of judgment and learned of it only upon service of a bill of costs; the application followed within about six weeks of that knowledge.
The court found the applicant's account credible: counsel attended on the diarised date of 20th July, 2017 but was told judgment was not for delivery that day, and only learned of the 28th July judgment when served with the bill of costs on 4th December, 2017. The motion was filed on 22nd January, 2018, about six weeks later, so the respondents' claim of six months' inordinate delay failed. The respondents also bore some blame for not informing the applicant of delivery of judgment.
Whether the intended appeal was frivolous and whether the respondents would be prejudiced
The draft memorandum of appeal raised matters that could not be said to be frivolous, and the respondents would suffer no prejudice if time were extended, the applicant having a right of appeal.
The single judge applied the settled Leo Sila Mutiso factors. Having perused the draft memorandum of appeal, the court found the intended appeal raised non-frivolous substantive and procedural issues. On prejudice, the court was satisfied the respondents would not be prejudiced by the exercise of discretion in the applicant's favour, since the applicant had a right of appeal in any event, and the delay was largely attributable to lack of notice of judgment.
Legal principles established
#- In a rule 4 extension-of-time application the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
Court orders
#- 1.The motion dated 19th January, 2018 is allowed
- 2.The applicant shall file and serve a Notice of Appeal within 14 days of the date of the order
- 3.Costs of the application shall be in the appeal
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time to file and serve a Notice of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muchangi Nduati Ngingo T/A Muchangi Nduati & Co. Advocates v Shepherd Group of Companies Limited & another [2018] KECA 65 (KLR)", Case Analysis (2018). Notice of Motion dated 19th January, 2018 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/65/eng@2018-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.