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Court of AppealDismissedNotice of Motion dated 18th September, 2018 (Civil Application)· [2021] KECA 2 (KLR)

Embu Gaturi Housing Co-op Society v Njenga & 2 others (Civil Appeal (Application) 119 of 2018) [2021] KECA 2 (KLR)

Court of Appeal of Kenya
23 September 2021
1,494 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to extend time because the society couldn't explain a nearly one-year delay in filing its appeal record.

What this practically means

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Executive summary

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This was a single-judge ruling of the Court of Appeal at Nairobi, delivered by Murgor, JA, on an application under Rule 4 by Embu Gaturi Housing Cooperative Society seeking to have an appeal from a High Court judgment at Embu delivered on 22nd February 2017 deemed filed and served within time. The Notice of appeal was filed one day late (9th March 2017 instead of 8th March 2017), and the record of appeal was filed 383 days after the Notice of appeal, well beyond the prescribed 60 days. The respondents opposed, contending the appeal was incompetent because the Notice of appeal was filed out of time, no request for certified typed proceedings was made or served, and no adequate explanation existed for the further delay after the proceedings were obtained. Applying the principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court excused the one-day delay in filing the Notice of appeal but held that the delay of nearly one year in filing the record was wholly unexplained. The applicant had not annexed the certificate of delay to the motion nor demonstrated that a written request for proceedings had been served on the respondents, a precondition to excluding time under rule 82(2). The applicant also failed to attach the High Court judgment, so the court could not assess the appeal's chances of success, and found the respondents would be prejudiced by further delay in enjoying the fruits of their judgment. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the one-day delay in filing the Notice of appeal was excusable

Holding

Yes - the one-day delay in filing the Notice of appeal was duly explained

Reasoning

The court accepted that the Notice of appeal was due by 8th March 2017 and was filed on 9th March 2017. That single day's delay was, on the material before it, considered explained and therefore did not, by itself, defeat the application.

p. 3
02

Whether the delay in filing the Record of appeal was explained

Holding

No - the delay of 383 days beyond the 60-day period was wholly unexplained and the certificate of delay was not relied upon in the motion

Reasoning

The record of appeal was filed 383 days after the Notice of appeal, well beyond the prescribed 60 days. The applicant did not annex the certificate of delay to the motion nor seek to rely on it, and presented the court with a fait accompli. Without a request for proceedings served on the respondents, rule 82's exclusion of time was unavailable and no explanation for the delay was offered.

p. 3
03

Whether the intended appeal had chances of success

Holding

The court could not assess arguability because the applicant did not attach the High Court judgment to the application

Reasoning

An applicant for extension of time must demonstrate the appeal is arguable. The applicant failed to annex a copy of the High Court judgment, leaving the court with no basis to evaluate the merits of the intended grounds of appeal, including the defamation finding and the striking out of the cross-appeal.

p. 3
04

Whether the respondents would suffer prejudice

Holding

Extension would further delay the respondents' enjoyment of the fruits of their judgment

Reasoning

The court found that granting the extension would prolong the respondents' wait to execute the judgment in their favour delivered in February 2017. This prejudice weighed against the unexplained delay in declining to extend time.

p. 3

Legal principles established

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  • Under Rule 4 the Court has unfettered but judicious discretion to extend time, guided by the length of the delay, the reason for the delay, the chances of success of the appeal, and prejudice to the respondent
  • An appellant cannot rely on the proviso to rule 82(1) excluding time for preparation of typed proceedings unless the application for the copy was in writing and served on the respondent; failing proof of service, the appellant must otherwise adequately explain the delay

Court orders

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  1. 1.The notice of motion dated 18th September 2018 is dismissed
  2. 2.Time is not extended to file the record of appeal and the record is not deemed as duly filed
  3. 3.Costs to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82 (including sub-rules (1) and (2))

Cases cited (1)

  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
On appeal from
High Court at Embu
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "Embu Gaturi Housing Co-op Society v Njenga & 2 others (Civil Appeal (Application) 119 of 2018) [2021] KECA 2 (KLR)", Case Analysis (2021). Notice of Motion dated 18th September, 2018 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/2/eng@2021-09-23

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