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Court of AppealAllowedNotice of Motion dated 19th January, 2018 (Civil Application)· [2018] KECA 65 (KLR)

Muchangi Nduati Ngingo T/A Muchangi Nduati & Co. Advocates v Shepherd Group of Companies Limited & another [2018] KECA 65 (KLR)

Court of Appeal of Kenya
23 November 2018
1,152 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by S. ole Kantai, JA, on a Notice of Motion dated 19th January, 2018 brought under rule 4 of the Court of Appeal Rules seeking extension of time to file and serve a Notice of Appeal against a High Court judgment delivered on 28th July, 2017. The applicant, an advocate acting in person, explained that a judgment date of 20th July, 2017 had been diarised after a mention on 20th June, 2017, but on that date the court clerk indicated judgment was not for delivery; the applicant only learned of the judgment when served with the respondents' bill of costs on 4th December, 2017, and filed the application on 22nd January, 2018. The respondents, through a director's replying affidavit, contended the roughly six-month delay was inordinate in a matter then nearly 21 years old. Applying the settled factors in Leo Sila Mutiso v Rose Hellen Wangare Mwangi (length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent), the court held the delay was not inordinate given the absence of a notice of judgment and the respondents' own failure to inform the applicant of delivery of judgment; the draft memorandum raised non-frivolous issues; and the respondents would suffer no prejudice. The motion was allowed with the Notice of Appeal to be filed and served within 14 days, and costs of the application were made costs in the appeal.

Key legal issues

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01

Whether delay was inordinate where the applicant was not served with notice of judgment

Holding

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.

Reasoning

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.

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02

Whether the intended appeal was frivolous and whether the respondents would be prejudiced

Holding

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.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The motion dated 19th January, 2018 is allowed
  2. 2.The applicant shall file and serve a Notice of Appeal within 14 days of the date of the order
  3. 3.Costs of the application shall be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (1)

  • Leo Sila Mutiso Vs Rose Hellen Wangare Mwangi
    Civil Application No. 255 of 1977
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

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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, "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.