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Court of AppealDismissedCivil Application (Notice of Motion dated 12th January, 2017)· [2018] KECA 658 (KLR)

Muchenda v Pius & another (Civil Application 6 of 2017) [2018] KECA 658 (KLR)

Court of Appeal of Kenya
26 April 2018
JMJ. Mohammed
1,932 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a request to file a late appeal, ruling that blaming your lawyer is not a good enough reason for inexcusable delay.

What this practically means

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Executive summary

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This was a single-judge application before the Court of Appeal at Kisumu under Rules 4, 42(1) and 47(1) of the Court of Appeal Rules, 2010, in which Alfred W. Muchenda sought leave to appeal out of time against a High Court ruling delivered on 11th December 2014 in a land dispute with his brother, who had allegedly sold the applicant's land to the second respondent. The applicant explained the delay of over one year by asserting that his advocates never informed him of the delivery of the ruling until November 2016. The respondent opposed, showing that the applicant's counsel was present in court when the ruling was delivered, that the delay was inordinate and unexplained, and that the underlying litigation had been ongoing since 1993. The court restated the settled Rule 4 principles: the discretion is unfettered but judicial, guided by the period of and reasons for delay, prejudice to the respondent, and other relevant non-exhaustive factors. The court found that the reasons for the delay had not been satisfactorily substantiated, that there was no evidence the applicant followed up his case, and that blaming counsel was insufficient. The Notice of Motion was dismissed with each party bearing their respective costs. The applicant was thus left to bear the consequences of the unexplained delay, and the respondents preserved the fruits of their judgment.

Key legal issues

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01

Whether the applicant's explanation for the delay of over one year in filing his appeal was reasonable and excusable

Holding

The application was dismissed because the applicant failed to satisfactorily explain the delay; there was no evidence of steps taken to follow up the matter, and blaming the advocate was insufficient.

Reasoning

The ruling was delivered on 11th December 2014; the application was filed on 12th January 2017, over one year later. The applicant claimed his advocates only informed him of the ruling in November 2016, but the respondent showed counsel was present at delivery of the ruling. The court found no evidence of any steps taken by the applicant to follow up on the progress of his matter, and the letter requesting proceedings breached Rule 82 by not being copied to the respondents' counsel. The delay was thus inordinate and unsubstantiated.

p. 4
02

The principles governing extension of time under Rule 4 of the Court of Appeal Rules

Holding

The court's power under Rule 4 is discretionary and unfettered; the applicant must explain to the satisfaction of the court why the discretion should be exercised in his favour, considering the period of delay, reasons for the delay, prejudice to the respondent, and other relevant factors, which are not exhaustive.

Reasoning

Relying on Fakir Mohammed v Joseph Mugambi, Mwangi v Kenya Airways, Wasike v Swala and other authorities, the court restated the settled principles: the discretion is unfettered and the list of factors non-exhaustive; an applicant must show merit in the appeal, absence of undue prejudice, and that the delay is not inordinate; and the right of appeal must be balanced against the respondent's right to enjoy the fruits of judgment.

p. 2

Legal principles established

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  • A party cannot simply blame their advocate for delays; parties must show interest in and follow up their cases even when represented by counsel.
  • The discretion under Rule 4 is unfettered but must be exercised judicially, guided by the period of delay, reasons for delay, prejudice to the respondent, and other relevant factors.
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's flow of discretionary favour.

Court orders

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  1. 1.The Notice of Motion dated 12th January, 2017 is dismissed
  2. 2.Each party to bear their respective costs

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 42(1)
  • Court of Appeal Rules, 2010Rule 47(1)
  • Court of Appeal Rules, 2010Rule 75
  • Court of Appeal Rules, 2010Rule 82

Cases cited (7)

  • Fakir Mohammed V Joseph Mugambi & 2 Others
    [2006] eKLR
  • Mwangi V. Kenya Airways Ltd
    [2003] KLR 48
  • M/S Portreitz Maternity V. James Karanga Kabia
    Civil Appeal No. 63 of 1997
  • Wasike V Swala
    [1984] KLR 591
  • Habo Agencies Limited V Wilfred Odhiambo Musungu
    [2015] eKLR
  • Monica Malel & Another V. R
    Eldoret Civil Application No. Nai 246 of 2008
  • Waweru & Another V Karoni
    [2003] KLR 448
On appeal from
High Court
Jurisdiction invoked
Rules 4, 42(1) and 47(1) of the Court of Appeal Rules, 2010 (extension of time under Rule 4)

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, "Muchenda v Pius & another (Civil Application 6 of 2017) [2018] KECA 658 (KLR)", Case Analysis (2018). Civil Application (Notice of Motion dated 12th January, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/658/eng@2018-04-26

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