Njagi & 36 others v Attorney General (Civil Appeal (Application) E112 of 2021) [2021] KECA 250 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a two-year-late appeal because the delay was caused by court delays and Covid-19, not the appellant's negligence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be granted leave to file and serve a record of appeal out of time against the ruling and order of the High Court dated 4th April, 2019
- 2.Whether the record of appeal already filed in Civil Appeal No. E112 of 2021 on 9th March, 2021 should be deemed duly filed
Key legal issues
#Period of delay and whether it was inordinate
The delay of two years and five days from the impugned decision was not inordinate when measured from the date of capacitation (receipt of proceedings and certificate of delay on 28th January, 2021), and was sufficiently explained as excusable.
The court measured the delay both from the impugned ruling and from the date the applicants were supplied with certified proceedings and a certificate of delay. The notice of appeal and letter bespeaking proceedings were timeously filed; the delay was attributable to the Deputy Registrar's failure to supply proceedings and to Covid-19 disruptions, a matter of judicial notice. Measured from capacitation, the delay was about two months, which was not inordinate and was excusable.
Reason for the delay
Failure of the Deputy Registrar to timeously supply proceedings and a certificate of delay, coupled with Covid-19 pandemic disruptions, constituted plausible and sufficient explanation.
The applicants exhibited documentation showing a timeously filed notice of appeal and letter bespeaking proceedings. Proceedings were only supplied on 4th November 2020 and the certificate of delay on 28th January 2021 after numerous follow-ups. The court took judicial notice of Covid-19 quarantine measures affecting the judiciary's service delivery and found the applicants' assertions undisputed and plausible.
Arguability of the intended appeal
The four grounds of appeal challenging the Judge's refusal to award interest on damages satisfied the threshold for arguability.
The memorandum of appeal raised four grounds alleging the learned Judge erred in declining interest on general damages, failed to give cogent reasons, exercised discretion arbitrarily, and ignored the objective for which the law provides interest. The court applied the standard that an arguable appeal need not succeed but must warrant interrogation and a response, and found the grounds met that threshold.
Prejudice to the respondent and the right to be heard
No prejudice was demonstrated by the respondent; the constitutionally entrenched right to be heard on appeal favoured granting the relief.
The application was unopposed and no response was filed, so no prejudice was demonstrated. Relying on Leiyagu, Mbaki and Sherally, the court held the right to be heard is constitutionally entrenched, the cornerstone of the rule of law, and a decision reached in violation of it will be nullified as a breach of natural justice. Ends of justice dictated that the applicants be heard on their already-filed appeal.
Legal principles established
#- Extension of time under Rule 4 is an equitable remedy, not a right, granted at the court's discretion to a deserving party who lays a basis for it
- An arguable appeal need not succeed; it need only warrant the Court's interrogation and a response from the opposite party
- The right to be heard on appeal is constitutionally entrenched and is the cornerstone of the rule of law
Court orders
#- 1.Leave be and is hereby granted to the applicant to appeal out of time against the decision of the High Court at Nairobi, by R. Mwongo, J. dated 4th April, 2019 in Nairobi HC Civil Case No. 528 of 2009
- 2.Leave to file an appeal granted to the appellants is extended to the date the record of appeal was filed on 9th March, 2021
- 3.Civil Appeal No. E112 of 2021 herein filed on 19th March, 2021 be and is hereby therefore deemed to be properly filed
- 4.Costs of the application to abide the outcome of the Appeal in E112 of 2021
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Civil Case No. 528 of 2009
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4 and 42 of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Leave be and is hereby granted to the applicant to appeal out of time against the decision of the High Court at Nairobi, by R. Mwongo, J. dated 4th April, 2019 in Nairobi HC Civil Case No. 528 of 2009.
Civil Appeal No. E112 of 2021 herein filed on 19th March, 2021 be and is hereby therefore deemed to be properly filed.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
In law, an arguable appeal is one that need not succeed but one that warrants the Court’s interrogation on the one hand and a response from the opposite party on the other hand.
Costs of the application to abide the outcome of the Appeal in E112 of 2021.
Issues in the judgment
#The judgment states the record of appeal was filed on 9th March, 2021 in the prayers and narrative, but the final order deems Civil Appeal No. E112 of 2021 as filed on 19th March, 2021, an internal inconsistency in the filing date.
The application seeks extension/leave to file a record of appeal against the ruling of 4th April, 2019, yet the narrative describes a judgment delivered on 29th January, 2019 and a subsequent ruling declining to vary it; the underlying decision appealed is described in both terms.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njagi & 36 others v Attorney General (Civil Appeal (Application) E112 of 2021) [2021] KECA 250 (KLR)", Case Analysis (2021). Civil Appeal No. E112 of 2021 (Application dated 9th April, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/250/eng@2021-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.