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Court of AppealAllowedNotice of Motion dated 26th March 2018 (Nyahururu ELC No. 115 of 2018 appeal)

Agnes Mumbi Wairagu v Thomas A. G. Njeru & another [2021] KECA 1009 (KLR)

Court of Appeal of Kenya
5 February 2021
Martha Karambu KoomeM. K. Koome
795 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a litigant to appeal out of time, accepting illness and money troubles as good reasons for the delay.

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 (Koome, JA) on a Notice of Motion dated 26th March 2018 by Agnes Mumbi Wairagu seeking leave to appeal out of time against a judgment of Ounda, J delivered on 18th January 2018 in Nyahururu ELC No. 115 of 2018. The applicant explained that she was absent from the delivery of judgment on account of ill health, supported by a medical record from Lucimed Clinic in Nyahururu dated 18th January 2018. She learned of the outcome on 14th February 2018, instructed counsel, and lodged a Notice of Appeal on 19th February 2018 which was about fourteen days late; the present motion followed two months later, the delay being attributed to illness and the need to organize finances to instruct counsel. The application was undefended: no replying affidavit or submissions were filed. The court applied Rule 4 of the Court of Appeal Rules, adopting the non-exhaustive factors set out in Fakir Mohamed v Joseph Mugambi, and the overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act. It stressed that the respondent's non-opposition did not lessen its duty to scrutinize the exercise of discretion. Finding the explanation reasonable, the court granted the extension, allowing the applicant thirty days from the ruling to file and serve the Notice and Record of Appeal, with no order as to costs. The decision below was not disturbed; the ruling concerns only admission of the appeal.

Key legal issues

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01

Whether cogent reasons existed to extend time for filing the Notice and Record of Appeal

Holding

The applicant's illness on the date of judgment and the time needed to organize finances to instruct counsel constituted reasonable explanation for the delay

Reasoning

The court applied the Rule 4 factors from Fakir Mohamed v Joseph Mugambi. The applicant was absent from judgment due to ill health evidenced by a medical record from Lucimed Clinic, learned of the outcome on 14th February 2018, filed a late Notice of Appeal, and explained the further delay by illness and financial organization. The application was unopposed, but the court held that this did not lessen its duty to exercise judicial discretion on the Rule 4 criteria. Finding the reasons reasonable, it extended time by thirty days.

p. 2

Legal principles established

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  • In exercising discretion under Rule 4 to extend time, the court considers relevant but non-exhaustive factors: period of delay, reason for delay, chances of appeal succeeding, prejudice to respondent, effect on public administration, importance of compliance with time limits, resources of parties and public importance.

Court orders

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  1. 1.Leave granted for extension of time
  2. 2.Applicant given thirty (30) days from the date of the Ruling to file and serve the Notice and Record of Appeal
  3. 3.No order as to costs
On appeal from
Environment and Land Court
Nyahururu ELC No. 115 of 2018
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act

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, "Agnes Mumbi Wairagu v Thomas A. G. Njeru & another [2021] KECA 1009 (KLR)", Case Analysis (2021). Notice of Motion dated 26th March 2018 (Nyahururu ELC No. 115 of 2018 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1009/eng@2021-02-05

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