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Court of AppealDismissedNot stated in the text· [2021] KECA 186 (KLR)

Mulwa & another v Mulwa & another (Civil Application E482 of 2021) [2021] KECA 186 (KLR)

Court of Appeal of Kenya
19 November 2021
598 words in judgment
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The bottom line

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The Court of Appeal ruled that being broke is not a valid excuse for filing an appeal late, because rules exist specifically to help litigants who can't afford fees.

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 at Mombasa (Warsame, JA) delivered on 19th November 2021 on a Notice of Motion dated 20th August 2021 brought under Articles 48 and 159 of the Constitution, Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court's Rules. The applicant sought leave to file a notice of appeal out of time, or alternatively that a notice of appeal lodged on 2nd August 2021 be deemed properly on record, following a judgment delivered on 30th June 2021. The sole ground advanced was a 51-day delay attributable to the applicants' inability to raise legal and court fees, said to result from financial distress caused by the Covid-19 pandemic. The court restated the unfettered but reasoned nature of the Rule 4 discretion and the non-exhaustive factors drawn from Fakir Mohammed v Joseph Mugambi, and affirmed that the applicant bears the burden of justifying the extension. Relying on Joseph Maina Njoroge, the court held that impecuniosity has never been accepted as a valid reason for extending time, because the Rules provide a distinct remedy for applicants who lack means to pay fees or security for costs. The application was dismissed with no orders as to costs. The decision binds the High Court and subordinate courts on the weight of financial incapacity as a ground for extension of time.

Key legal issues

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01

Whether financial incapacity is a valid reason for extending time to lodge an appeal

Holding

It is not. The court dismissed the application because the applicant's claimed inability to raise legal and court fees does not meet the threshold for exercise of discretion under Rule 4, given the availability of Rule 15/115-type fee-waiver and security-for-costs mechanisms.

Reasoning

The court reviewed the established Rule 4 factors and noted the discretion is unfettered but must be exercised on reasoned grounds. It drew on Joseph Maina Njoroge, holding that impecuniosity has never been accepted as a valid reason since the Rules allow an applicant who lacks means to apply for relief in respect of fees and security for costs. The applicant's 51-day delay, attributed to financial distress said to follow the Covid-19 pandemic, was therefore insufficiently justified.

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02

Who bears the burden on an extension-of-time application

Holding

The applicant seeking extension of time bears the burden of laying a basis to the satisfaction of the court.

Reasoning

Citing Vishva Stone Suppliers, the court stated that a party seeking leave for extension of time must place material before the court to justify the exercise of discretion. Discretion is generally unfettered, but must be grounded on reason and cannot be exercised on whim, caprice or sympathy. The applicant's singular ground - inability to raise fees - did not discharge this burden.

p. 2

Legal principles established

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  • Financial incapacity or impecuniosity is not, of itself, a valid reason for extending time to lodge an appeal, because the Court's Rules provide a dedicated mechanism for applicants who lack means to pay fees
  • A party seeking extension of time bears the burden of laying a basis to the satisfaction of the court, and the discretion, though unfettered, must be grounded on reason and not on whim, caprice or sympathy
  • The Rule 4 factors (length of delay, reason for delay, prejudice, chances of success, effect on public administration, importance of compliance with time limits, resources of the parties) are relevant but not exhaustive

Court orders

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  1. 1.The application for extension of time to file and deem the notice of appeal properly on record is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 159
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 115

Cases cited (3)

  • Fakir Mohammed v. Joseph Mugambi & 2 Others
    (2005) eKLR
  • Vishva Stone Suppliers Company Limited v. RSR Stone (2006) Limited
    (2020) eKLR
  • Joseph Maina Njoroge & 2 Others v. Paul Chege Muhahi
    [2007] eKLR
Jurisdiction invoked
Articles 48 and 159 of the Constitution of Kenya, 2010; Sections 3A and 3B of the Appellate Jurisdiction Act; 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, "Mulwa & another v Mulwa & another (Civil Application E482 of 2021) [2021] KECA 186 (KLR)", Case Analysis (2021). Not stated in the text. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/186/eng@2021-11-19

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