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Court of AppealAllowedCivil Application (Nairobi) - Notice of Motion dated 9th July 2021· [2021] KECA 243 (KLR)

Ngei v Kibe & another (Civil Appeal (Application) E359 of 2021) [2021] KECA 243 (KLR)

Court of Appeal of Kenya
3 December 2021
KLK. I. Laibuta
1,644 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a litigant more time to appeal a lost defamation case, showing courts will excuse delays explained by registry holdups.

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 Dr. K. I. Laibuta, JA, on 3rd December 2021, on a Notice of Motion dated 9th July 2021 brought under Rule 4 of the Court of Appeal Rules by James Muchene Ngei. The applicant sought extension of time to serve the Notice of Appeal and to lodge and serve the Record of Appeal, together with an order deeming the Record of Appeal as duly filed, in an intended appeal against the judgment of the High Court of Kenya at Nairobi (C. W. Githua, J.) in Civil Suit No. 680 of 2002, delivered on 25th June 2020, a defamation claim in which the applicant lost both liability and quantum. The Motion was unopposed: the respondents filed no replying affidavit and only the applicant filed submissions, but the court stressed that an unopposed Motion must still satisfy Rule 4. Applying the settled criteria from Imperial Bank v Popat, Salat v IEBC, Wasike v Swala and Muchungi Kiragu, the court found the delay not inordinate - it was largely attributable to the registry's delay in producing certified proceedings, as shown by the Certificate of Delay - that the respondents would suffer no prejudice, and that the draft Memorandum raised arguable points on defamation liability and quantum. The Motion succeeded; the applicant was ordered to serve the Notice and Record within 7 days, the Record was deemed duly filed, and costs of the application were made costs in the appeal.

Key legal issues

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01

Factors governing extension of time under Rule 4

Holding

The court applies the settled criteria: length of and reasons for delay, prejudice, conduct of parties, competing interests, public interest, and arguability of the intended appeal

Reasoning

The court adopted the formulation in Imperial Bank Ltd v Alnasir Popat and the descending-scale criteria in Wasike v Swala: merit in the appeal, absence of undue prejudice to the respondent, and absence of inordinate delay. The Rule 4 discretion is unfettered per the Supreme Court in Salat v IEBC, but must be exercised on the applicant's explanation for the delay.

p. 3
02

Role of a single judge on arguability

Holding

A single judge cannot determine definitively the merits of the intended appeal; sufficiency lies in demonstrating an arguable appeal with a possibility of success

Reasoning

Guided by Athuman Nusura Juma v Afwa Mohamed Ramadhan, the court held that the merits inquiry is prefixed with 'possibly' and final merits determination is for the full court. The draft Memorandum of Appeal raised arguable points on defamation liability and quantum, satisfying the threshold without scrutinising the merits.

p. 3
03

Prejudice to respondents

Holding

Extension of time would not unduly prejudice the respondents, who did not file a reply to the Motion

Reasoning

Relying on Muchungi Kiragu v James Muchungi Kiragu, the court reasoned that it would be wrong to shut an applicant out of court where the appeal is arguable and the opponent suffers no prejudice. The delay in lodging the Record was not inordinate, having been partly occasioned by the registry's delay in preparing certified proceedings as evidenced by the Certificate of Delay.

p. 4

Legal principles established

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  • The discretion under Rule 4 to extend time is unfettered, but the applicant must explain the reasons for the delay and any extenuating circumstances
  • A single judge considering extension of time must not definitively determine the merits of the intended appeal; the applicant need only show an arguable appeal with a possibility of success

Court orders

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  1. 1.The applicant do serve its Notice of Appeal and Record of Appeal within 7 days from the date hereof
  2. 2.The applicant's Record of Appeal filed herein be deemed as duly filed
  3. 3.Costs of this application be costs in the appeal

Authorities

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Legislation

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

Cases cited (7)

  • John Ochanda v Telecom Kenya Limited
    [2014] eKLR
  • Imperial Bank Ltd (in receivership) and Another v Alnasir Popat and 18 Others
    [2018] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others
    [2015] eKLR
  • 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
    [1998] eKLR
On appeal from
High Court of Kenya at Nairobi (Civil Division)
Civil Suit No. 680 of 2002
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (unfettered discretion to extend time for doing any act required by the Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (21)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ngei v Kibe & another (Civil Appeal (Application) E359 of 2021) [2021] KECA 243 (KLR)", Case Analysis (2021). Civil Application (Nairobi) - Notice of Motion dated 9th July 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/243/eng@2021-12-03

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