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Court of AppealDismissedCivil Application 136 of 2020· [2022] KECA 913 (KLR)

ombacho v Miruka (Civil Application 136 of 2020)

Court of Appeal
22 July 2022
PKP. O. Kiage
898 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant gave no explanation for months of delay after receiving court proceedings.

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 (Kiage, JA) on a Notice of Motion dated November 6, 2020 by George Mauti Ombacho seeking extension of time to file a Notice of Appeal and Record of Appeal against the judgment of the Environment and Land Court at Kisii (Mutungi, J.) delivered on November 7, 2019 in ELC No. 412 of 2013. The applicant deposed that the judgment was delivered in the absence of his advocate, who was not served with notice of delivery; the advocate learned of the judgment on February 18, 2020, immediately bespake proceedings, received certified copies on July 9, 2020, and filed the application in the interest of justice. The respondent opposed, contending the applicant exhibited inordinate and inexcusable delay: proceedings were ready for collection on March 5, 2020 but were only paid for on July 9, 2020, and the application was filed some 120 days after receipt of the proceedings. Applying the settled Rule 4 principles from Muringa Company Ltd vs Archdiocese of Nairobi Registered Trustees, the court accepted that the applicant could not be faulted for the period before discovery of the judgment, but found he proffered no explanation for the four months taken to pay for the proceedings and a further four months before filing the application. Holding that a plausible and satisfactory explanation is the key that unlocks the court's discretionary favour, Kiage, JA found the delay inordinate and inexcusable, declined to extend time, and dismissed the application in its entirety with costs.

Key legal issues

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01

Extension of time under Rule 4 - governing principles

Holding

The court exercises a free and unfettered discretion guided by settled principles: length of delay, reasons for delay, prejudice, conduct of parties, balancing interests, public interest, and whether the intended appeal is prima facie arguable.

Reasoning

The court adopted the factors in Muringa Company Ltd vs Archdiocese of Nairobi Registered Trustees as the settled framework for Rule 4 applications, emphasising the factors are not exhaustive and the discretion is free but guided.

p. 2
02

Whether the delay was satisfactorily explained

Holding

No. While the applicant could not be faulted for the lapse of time before discovering the judgment, he offered no explanation for the four months taken to pay for proceedings ready by March 5, 2020, and a further four months before filing the application.

Reasoning

The court distinguished the delay occasioned by the registry's failure to notify the advocate of judgment delivery (excused) from the applicant's own indolence after bespeaking proceedings (unexcused). Without explanation for the latter, the discretion could not be exercised in the applicant's favour.

p. 2

Legal principles established

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  • A plausible and satisfactory explanation for delay is the key that unlocks the Court's discretionary favour on an extension-of-time application.

Court orders

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  1. 1.The prayer to extend time is declined
  2. 2.The application is dismissed in its entirety with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (2)

  • Muringa Company Ltd vs. Archdiocese of Nairobi Registered Trustees
    Civil Application No. 190 of 2019

    Settled factors for considering an extension of time application

  • Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet
    [2018] eKLR

    That a plausible and satisfactory explanation is key to unlocking the court's discretionary favour

On appeal from
Environment and Land Court at Kisii
ELC No. 412 of 2013
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "ombacho v Miruka (Civil Application 136 of 2020)", Case Analysis (2022). Civil Application 136 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/913/eng@2022-07-22

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