Gichuki & another v Riunge & another
The bottom line
#Kenya's Court of Appeal allowed a late appeal where a 34-day delay was explained by Covid-19 restrictions and difficulty obtaining the ruling.
What this practically means
#Executive summary
#Key legal issues
#Whether a 34-day delay in filing the notice of appeal was inordinate and sufficiently explained
The 34-day delay was not inordinate and was well explained: the trial court read out only the last paragraph of the ruling, the judge's secretary failed to provide the full ruling despite calls and messages, and Covid-19 restrictions prevented physical visits to the registry.
The court weighed the length of delay against the reason offered. The applicants only accessed the ruling on 20th August 2021 when it was uploaded to the Kenya Law Reports website, then instructed advocates on 23rd August 2021. The delay was attributable to circumstances beyond their control, not negligence.
Whether the intended appeal was arguable and whether the respondents would suffer prejudice
The draft memorandum of appeal showed the intended appeal was arguable, and the respondents would not be prejudiced by the grant of the orders sought.
On the rule 4 factors, the court found the arguability threshold met on a perusal of the draft memorandum, noting that at this stage it can only say the appeal is arguable, not that it will succeed. No prejudice was demonstrated, the respondents having filed nothing in opposition.
Legal principles established
#- The power to extend time under rule 4 of the Court of Appeal Rules is discretionary, and the court considers the length of delay, reason for delay, chances of success of the intended appeal, and prejudice to the respondent.
- Even where a respondent fails to file a replying affidavit or submissions, the court is still duty bound to consider an unopposed application on its merits.
Court orders
#- 1.The notice of appeal filed on 23rd August 2021 be and is hereby deemed as duly filed
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Nairobi (Family Division)
- H.C. Succ. Cause No. 3079 of 2002
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichuki & another v Riunge & another", Case Analysis (2022). Civil Application E309 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/716/eng@2022-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.