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Court of AppealDismissedCivil Application No. 58 of 2017 (UR 39/2017)· [2018] KECA 719 (KLR)

Murungi Kirigia v Catherine Kawira Muriungi [2018] KECA 719 (KLR)

Court of Appeal of Kenya
7 February 2018
1,354 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time for an appeal filed eight years late because the applicant filed no Notice of Appeal and wasn't honest with the court.

What this practically means

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Executive summary

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This is a single-judge (chambers) ruling of the Court of Appeal at Nyeri (Sichale, JA) on a notice of motion dated 2nd June 2017 by Murungi Kirigia seeking, in the event, only an extension of time to file and serve a Notice of Appeal and Record of Appeal out of time from the judgment of Kasango, J of the High Court at Meru delivered on 9th July 2009 in Civil Case No. 134 of 2003. The applicant, who described the respondent as his biological daughter, wished to challenge the ex-parte judgment on the basis that he was not heard, and asserted that eviction from the suit land would leave him and 17 family members destitute. The respondent opposed, showing that the applicant had already applied to set aside the ex-parte judgment (dismissed on 30th April 2010), filed a notice of appeal against that ruling, and failed in successive stay applications in the High Court and in the Court of Appeal (dismissed 2nd December 2011). She also produced the applicant's earlier affidavit describing her as his niece. Applying the settled Leo Sila Mutiso principles for rule 4 extension-of-time applications, the court held that no Notice of Appeal existed against the 9th July 2009 judgment, no draft memorandum of appeal was exhibited, the proper course had been to appeal the refusal to set aside the ex-parte judgment, and the applicant's shifting accounts of paternity rendered him less than candid and undeserving of the court's discretion. The delay was inordinate. The motion was dismissed with costs to the respondent.

Key legal issues

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01

Extension of time under rule 4 of the Court of Appeal Rules

Holding

The application was dismissed: the applicant had not filed a Notice of Appeal against the judgment he sought to challenge, annexed no draft memorandum of appeal, was not candid with the court, and the delay of over seven years was inordinate

Reasoning

The court applied the settled Mutiso principles. It noted the applicant had earlier sought to set aside the ex-parte judgment and, having failed, should have appealed that refusal. No Notice of Appeal existed for the 9th July 2009 judgment, no draft grounds of appeal were exhibited, and the applicant's affidavit contradictions on paternity showed he was undeserving of the discretionary relief. Delay was inordinate.

p. 2
02

Candour as a condition of the court's discretion

Holding

Material non-disclosure and contradictions between the applicant's affidavits (describing the respondent as his niece in 2014 but as his biological daughter in 2017) disentitled him from discretionary relief

Reasoning

The court contrasted the applicant's 2014 affidavit deponing that the respondent was his niece with his 2017 claim that she was his biological daughter. This inconsistency led the court to conclude he was less than candid, which together with the inordinate delay justified refusal of the extension.

p. 2

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary, guided by the length of the delay, the reason for delay, the chances of the appeal succeeding, and the prejudice to the respondent

Court orders

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  1. 1.Dismissal of the applicant's motion dated 2nd June 2017 with costs to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 4

Cases cited (2)

  • Trans National Bank of Kenya vs. Hasam Said Amdun
    CA No. Nai 133 of 2005
  • Leo Sila Mutiso vs. Rose Helen Wangari Mwangi
    CA No. Nai. 255 of 1997
On appeal from
High Court of Kenya at Meru
Civil Case No. 134 of 2003
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application for extension of time), being an application from the judgment and orders of the High Court at Meru

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, "Murungi Kirigia v Catherine Kawira Muriungi [2018] KECA 719 (KLR)", Case Analysis (2018). Civil Application No. 58 of 2017 (UR 39/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/719/eng@2018-02-07

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