Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNotice of Motion dated 6th March 2020 (Civil Application)· [2021] KECA 22 (KLR)

Ngunjiri v Mbugua & another (Civil Application 25 of 2020 (UR 17 of 2020) of 2020) [2021] KECA 22 (KLR)

Court of Appeal of Kenya
23 September 2021
2,063 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

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appeal, showing courts won't excuse inordinate, unexplained delay or second chances after a notice of appeal is withdrawn.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

#
In a ruling delivered by Laibuta, JA in Nairobi on 23rd September 2021, the Court of Appeal dismissed a Notice of Motion dated 6th March 2020 in which the Applicant, John Muthee Ngunjiri trading as Tango Auctioneers and General Merchant, sought extension of time under Rules 23, 4 and 82 of the Court of Appeal Rules to file a fresh Notice of Appeal and a record of appeal out of time. The intended appeal was against the judgment and decree of the High Court at Nakuru (Ouko, J) of 31st January 2012 in HCCC No. 212 of 2004, awarding the decree holder Kshs 1,544,108 plus costs and interest in a claim for wrongful execution. The Applicant had filed a timely Notice of Appeal in 2012, but after proceedings and a certificate of delay were obtained, no record of appeal was lodged; that notice was withdrawn by consent on 20th February 2020 and a fresh notice filed on 27th February 2020. The Applicant blamed former counsel for the delay. Applying the Salat principles and the Wasike v Swala criteria - merit of the appeal, absence of prejudice, and inordinate delay - the court held the delay of over nine years inordinate and unexplained, the renewed notice an afterthought after consent withdrawal, the intended appeal not arguable on its wrongful-execution ground, and extension unduly prejudicial to the Respondent. The application failed on all counts and was dismissed with costs to the 2nd Respondent.

Key legal issues

#
01

Discretion to extend time under Rule 4

Holding

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.

Reasoning

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.

p. 3
02

Effect of withdrawal of the initial Notice of Appeal by consent

Holding

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.

Reasoning

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.

p. 4
03

Arguability of the intended appeal

Holding

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.

Reasoning

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.

p. 4

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. 1.The Applicant's Notice of Motion dated 6th March 2020 is dismissed
  2. 2.Costs of the application to the 2nd Respondent

Authorities

#

Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRules 23 and 82
  • Court of Appeal RulesRule 75(1) and (2)
  • Court of Appeal RulesRule 77(1)

Cases cited (7)

  • Fahim Yasin Twaha v Timami Issa Abdalla and 2 others
    [2015] eKLR
  • Fakir Mohammed v Joseph Mugambi and 2 others
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others
  • Pothiwalla v Kidogo Basi Housing Cooperative Society Ltd and 31 others
    [2005] eKLR
  • Wasike v Swala
    [1984] KLR 591
  • Athuman Nusura Juma v Afwa Mohamed Ramadhan
    CA No. 227 of 2015 (Unreported)
  • Muchungi Kiragu v James Muchungi Kiragu and another
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.

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.