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Court of AppealDismissedCivil Application (Rule 4) arising from Petition No. 603 of 2013· [2020] KECA 20 (KLR)

John Murage Mbogo v The Chief of The Kenya Defence Forces & 1 other

Court of Appeal of Kenya
18 December 2020
PKP. O. Kiage
702 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse an 18-month delay in fixing a defective appeal notice, stressing that lawyers must actively monitor pending cases.

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 (Kiage, JA) delivered at Nairobi on 18th December 2020 on a Notice of Motion dated 9th July 2020 by John Murage Mbogo under Rule 4 of the Court of Appeal Rules. The applicant sought leave to amend his notice of appeal against the judgment of the High Court at Nairobi (Mwita, J) of 4th May 2018 in Petition No. 603 of 2013, leave to file and serve the amended notice out of time, and an order deeming the amended notice filed on 28th April 2020 as duly filed. The omission arose because counsel, having filed the original notice on 17th May 2018 limited to liability and quantum of damages, only discovered in early March 2020 that she had omitted a ground concerning the violation of the applicant's fundamental rights arising from his dismissal from the armed forces. Guided by the factors in Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees, the judge held that although there is no set minimum or maximum period of delay, the delay must be reasonably explained. He found the explanation unsatisfactory, questioning how counsel took over one and a half years to discover the omission in an active matter, and further noted the breach of Rule 77(1) by serving the amended notice after two months instead of within 7 days. Concluding the delay was inordinate and inexcusable, the judge declined to extend time and dismissed the application with costs.

Key legal issues

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01

Extension of time to file and serve an amended notice of appeal

Holding

Application dismissed; delay of over one and a half years in discovering an omission in the notice of appeal was inordinate and inexcusable and extension was refused

Reasoning

Applying the Muringa Company Ltd factors, the single judge found the counsel's explanation - only discovering the omission in early March 2020 when preparing the memorandum of appeal - unsatisfactory for an active matter. Counsel also breached Rule 77(1) by serving the amended notice after two months rather than the required 7 days. The discretion is free and unfettered but must be exercised on a satisfactory explanation for the delay.

p. 2

Legal principles established

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  • In a Rule 4 extension-of-time application the delay must be reasonably explained; a plausible and satisfactory explanation is the key that unlocks the Court's discretionary favour
  • Due diligence requires counsel to regularly appraise active pending matters; an inexcusable inordinate delay justifies refusal of extension of time

Court orders

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  1. 1.Prayer to extend time declined
  2. 2.Application dismissed with costs
On appeal from
High Court at Nairobi
Petition No. 603 of 2013
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time jurisdiction)

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, "John Murage Mbogo v The Chief of The Kenya Defence Forces & 1 other", Case Analysis (2020). Civil Application (Rule 4) arising from Petition No. 603 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/20/eng@2020-12-18

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