Kithure & others v Nculubi & 3 others
The bottom line
#The Court of Appeal refused to forgive an 8-month delay in filing an appeal because the applicants couldn't prove their lawyers had ever filed the notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of approximately 8 months in filing the Notice of Appeal was inordinate and explained
The delay was inordinate and unexplained; the applicants gave no evidence of when they instructed counsel or when the alleged Notice of Appeal was lost, and no Notice could be traced on the court file.
The judgment was delivered on 5th November 2018 and the application filed on 24th July 2019, an approximately 8-month delay. The applicants' claim that former advocates filed and lost a Notice of Appeal was unsupported: no dates were given, no affidavit from the advocates, and no Notice was traceable on the file, making the claim highly doubtful.
Whether the intended appeal was arguable
The single Judge could not assess the merits because the record was not before him.
The applicants argued the learned judge erred in failing to appreciate evidence of the Interested Parties at trial, but the Court of Appeal was not seized of the record and, as a single Judge, the learned Judge declined to comment further on the merits of the intended appeal.
Legal principles established
#- Extension of time under Rule 4 is discretionary and governed by the Mutiso principles: length of delay, reasons for delay, chances of success and prejudice to the respondent
Court orders
#- 1.The applicants' motion dated 18th July 2019 dismissed in its entirety with costs to the respondents
- On appeal from
- High Court of Kenya at Meru
- HC. Succession Cause No. 353 of 2004
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithure & others v Nculubi & 3 others", Case Analysis (2022). Civil Application 116 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/400/eng@2022-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.