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Court of AppealDismissedApplication dated 13th December, 2018· [2020] KECA 412 (KLR)

Elphas Mwiti v Kenya Power and Lighting Company & 1 other

Court of Appeal
7 August 2020
1,719 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal refused to excuse a two-year appeal delay, holding that lacking money is not a valid reason because fee-relief rules already exist.

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 Nairobi, decided by J. Mohammed, JA on 7th August 2020, in which Elphas Mwiti sought leave under Rule 4 of the Court of Appeal Rules to file the record of appeal out of time against a High Court judgment delivered by Ngaah Jairus, J on 20th April 2016. The applicant attributed a delay of over two years to financial constraints preventing him from instructing an advocate and paying court fees, asserting that he was vigilant, that his intended appeal against what appears to have been a malicious prosecution claim had merit, and that the respondents would suffer no prejudice. The respondents opposed the application. The court restated the established Rule 4 principles from Leo Sila Mutiso v Hellen Wangari Mwangi, as elaborated in Fakir Mohammed and Muringa Company Ltd: the length and reason for the delay, the possible chances of success, and the prejudice to the respondent, all within an unfettered and non-exhaustive discretion. The court held the delay of over two years inordinate, and, following Joseph Maina Njoroge and Francis Mwai Karani, ruled that impecuniosity is not a valid reason for extending time because the Rules (Rule 112 and Rule 115(1)) already permit fee relief for those lacking means, which the applicant should have invoked. On merits, the court applied the 'possibly' standard, finding the applicant had not demonstrated likelihood of success without expressing definitive conclusions. The application was dismissed with no order as to costs.

Key legal issues

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01

Factors governing exercise of discretion under Rule 4 for extension of time

Holding

The discretion is unfettered and guided by non-exhaustive factors: length of delay, reason for delay, possible chances of appeal success, and prejudice to the respondent

Reasoning

Rule 4 does not enumerate the factors; courts have developed principles from the locus classicus Leo Sila Mutiso and subsequent decisions such as Fakir Mohammed and Muringa Company, all confirming the discretion is unlimited in the number of relevant factors so long as they are relevant and aim at a just decision in each case.

p. 2
02

Whether impecuniosity justifies extension of time

Holding

Lack of funds is not a valid reason for delay because the Rules provide a dedicated route for fee relief

Reasoning

Relying on Joseph Maina Njoroge and Francis Mwai Karani, the court held that Rule 112 (relief from fees and security) already addresses inability to pay, so impecuniosity cannot be a ground for extension; the applicant ought to have invoked Rule 115(1) instead. The over-two-year delay therefore remained unexplained.

p. 2
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Whether the intended appeal had merit

Holding

A single judge does not determine merit with finality; the consideration is only whether the appeal possibly has chances of success

Reasoning

Citing Athuman Nusura Juma, the court noted the prefixed word 'possibly' in the merits consideration. On the draft memorandum raising malicious prosecution and damages, the applicant failed to demonstrate likelihood of success, though the court refrained from definitive conclusions.

p. 3

Legal principles established

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  • Impecuniosity or lack of funds is not a valid reason for extending time to lodge an appeal, because relief from fees is already available under the Court's Rules
  • A party relying on financial hardship to justify delay should instead invoke the provision allowing lodging an appeal without payment of requisite fees
  • The law sets no minimum or maximum period of delay, but any delay must be satisfactorily and plausibly explained

Court orders

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  1. 1.The application dated 13th December, 2018 was dismissed with no order as to costs
On appeal from
High Court
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Elphas Mwiti v Kenya Power and Lighting Company & 1 other", Case Analysis (2020). Application dated 13th December, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/412/eng@2020-08-07

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