Ngunjiri v Mbugua & another (Civil Application 25 of 2020 (UR 17 of 2020) of 2020) [2021] KECA 22 (KLR)
The bottom line
#Kenya's Court of Appeal refused to revive a nine-year-old appeal, showing courts won't excuse inordinate, unexplained delay or second chances after a notice of appeal is withdrawn.
What this practically means
#Executive summary
#Key legal issues
#Discretion to extend time under Rule 4
The discretion is unfettered but must be exercised on established principles: the applicant must explain the delay, show the appeal is arguable, and show the respondent will suffer no prejudice.
The court restated the Salat principles and the Wasike v Swala criteria: merit of the appeal, absence of prejudice to the respondent, and whether the delay is inordinate. Applying these, the delay of over nine years after judgment, and eight years after obtaining proceedings, was inordinate and unexplained. Blaming counsel failed where the same counsel continued acting until 2020 and no evidence of steps to pursue the appeal was adduced.
Effect of withdrawal of the initial Notice of Appeal by consent
A party whose Notice of Appeal was withdrawn by consent cannot renew the desire to appeal through an extension-of-time application; doing so is an afterthought.
Although the Applicant had originally filed and served a Notice of Appeal in compliance with Rules 75 and 77, that notice was deemed withdrawn by consent on 20th February 2020. The attempt to file a fresh Notice of Appeal thereafter, seeking to resurrect a lapsed intention to appeal more than nine years after the decree, could not properly be entertained in the exercise of the Rule 4 discretion.
Arguability of the intended appeal
The intended appeal, founded on a challenge to a claim for wrongful execution, was not arguable; allegations that a judgment debtor acted on instructions could not excuse wrongful execution.
While the court has no jurisdiction to scrutinise the merits in depth, the draft Memorandum's single ground - that the superior court erred in upholding the claim for wrongful execution - could not reasonably yield an arguable appeal. Acting on instructions is no defence to wrongful execution. Prejudice to the decree holder, long deprived of the fruits of judgment, weighed against extension.
Legal principles established
#- Rule 4 confers an unfettered discretion on the Court to extend time on such terms as it thinks just, whether before or after the doing of the act.
- On an extension-of-time application, an applicant need only demonstrate that the intended appeal is arguable with the possibility - not certainty - of success; a single judge does not determine merit with finality.
Court orders
#- 1.The Applicant's Notice of Motion dated 6th March 2020 is dismissed
- 2.Costs of the application to the 2nd Respondent
- On appeal from
- High Court of Kenya
- Nakuru HCCC No. 212 of 2004
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (unfettered discretion to extend time)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Premji v Patel & another (Civil Appeal (Application) E328 of 2022) [2023] KECA 923 (KLR)[2023] KECA 923 (KLR)28 Jul 2023
- Njoroge & 2 others v Murang'a & 2 others (Civil Application E026 of 2023) [2024] KECA 1014 (KLR)[2024] KECA 1014 (KLR)31 May 2023
- Wambua v Syengo & 3 others[2023] KEELC 17002 (KLR)18 Apr 2023
Cite this brief
#Cite this brief
Caselaw, "Ngunjiri v Mbugua & another (Civil Application 25 of 2020 (UR 17 of 2020) of 2020) [2021] KECA 22 (KLR)", Case Analysis (2021). Notice of Motion dated 6th March 2020 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/22/eng@2021-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.