Julius Mugo Muchiri v Njiru K Njagi & another [2018] KECA 785 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal because a lawyer abandoned the client, showing courts will excuse delay when the client wasn't at fault.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted an extension of time to file an appeal out of time against the ruling of 14th June 2016
- 2.Whether the delay of approximately one year in filing the application was inordinate and reasonably explained
- 3.Whether the intended appeal is arguable and whether the respondents would suffer prejudice if the extension is granted
Key legal issues
#Whether the delay in filing the appeal was reasonably explained notwithstanding the absence of explanation for the period July 2016 to July 2017
The court excused the delay on the ground that the applicant's advocate on record abandoned him after filing the notice of appeal and applying for proceedings, and that the applicant personally paid for the proceedings and later appointed new counsel.
Although there was no reasonable explanation for the gap between July 2016 (when proceedings were availed) and July 2017 (when the motion was filed), the judge was prepared to excuse the applicant because his former advocate filed a notice of appeal and applied for proceedings but took no further steps. The applicant personally paid the fees, pursued his advocate without success, and eventually instructed new counsel. Resource constraints further explained inaction.
Whether the intended appeal was arguable and whether the respondents would be prejudiced
The intended appeal was not frivolous and any prejudice to the respondents could be compensated by costs.
The judge examined the draft memorandum of appeal annexed to the motion and took the view that the intended appeal did not appear frivolous. On prejudice, he reasoned that whatever prejudice the respondents might suffer could be compensated in an order for costs, which he in fact awarded when allowing the motion.
Legal principles established
#- The factors for exercising the Court of Appeal's discretion under Rule 4 on extension of time include the period of delay, the reason for delay, the chances of the appeal succeeding, the degree of prejudice to the respondent, and other relevant but non-exhaustive factors.
Court orders
#- 1.The motion dated 18th July 2017 is allowed
- 2.The applicant is granted leave to appeal out of time
- 3.The applicant to file a Record of Appeal within 14 days
- 4.Costs of the motion awarded to the respondents, assessed at Kshs. 7,500/-, payable within 14 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya, Kerugoya
- Misc. Application No. 65 of 2013 (ruling by R. K. Limo, J, 14 June 2016); underlying Kerugoya SRM Succession Cause No. 186 of 2006
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time for filing an appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The exercise of this court’s discretion under Rule 4 has followed a well beaten path since the stricture ‘sufficient reason’ was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant.
I am prepared to excuse the applicant who had a lawyer on record in the High Court but who appears to have abandoned the applicant after delivery of the ruling.
I allow the motion dated 18th July, 2017. The applicant will file a Record of Appeal within 14 days of today. I award costs of the motion to the respondents which I assess at Kshs. 7,500/- payable by the applicant to the respondents within 14 days of today.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Mugo Muchiri v Njiru K Njagi & another [2018] KECA 785 (KLR)", Case Analysis (2018). Extension of Time application (rule 4, Court of Appeal Rules) arising from Kerugoya High Court Misc. Application No. 65 of 2013 – In the matter of the Estate of Wanjoka Njagi alias Stella Wanjoka. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/785/eng@2018-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.