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Court of AppealDismissedCivil Application E122 of 2022· [2022] KECA 1005 (KLR)

Wambui & another v Mwangi

Court of Appeal
23 September 2022
ASAsike-Makhandia
1,787 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a two-year delay in filing an appeal record because the applicants offered no evidence supporting their explanation.

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 at Nairobi by Asike-Makhandia, JA, on a notice of motion dated 16 March 2022 brought under Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules. The applicants, Monicah Jackline Wambui and Pauline Mukuhi Nganga, sought leave to file and serve a record of appeal out of time against the judgment and decree of Nzioka, J. dated 18 May 2020 in HCCC No. 185 of 2009, with costs of the application to abide the appeal. The respondent opposed, contending the delay of 598 days was inordinate and unexplained, that the claim of the 1st applicant's mental illness lacked medical evidence, that the 2nd applicant could have instructed counsel, that the notice of appeal offended Rule 77(1), and that the request for typed proceedings was never copied to the respondent, disengaging Rule 82(1) and (2). The court restated the settled Rule 4 principles from Leo Sila Mutiso and related authorities, emphasizing the unfettered but judicially exercised discretion and the need for a plausible and satisfactory explanation for delay. Finding the two-year delay inordinate and the sole explanation unsupported by any evidence, and agreeing the Rule 82 point was fatal, the judge declined to exercise discretion in the applicants' favour and disallowed the application with costs to the respondent. The decision below was not disturbed, as the intended appeal was never lodged.

Key legal issues

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01

Whether the delay of approximately two years was inordinate and satisfactorily explained

Holding

The delay was inordinate; the sole explanation (1st applicant's mental illness) was unsupported by any evidence and the 2nd applicant was available to instruct counsel

Reasoning

The applicants conceded the two-year delay but claimed the 1st applicant was mentally ill. The court found no documentary or other evidence supporting this contention, and noted the 2nd applicant, also a party, could have given instructions throughout. The explanation was therefore unconvincing.

p. 3
02

Whether the applicants could rely on Rule 82(1) and (2) regarding the request for typed proceedings

Holding

They could not, because the letter requesting typed proceedings was never copied to the respondent

Reasoning

The respondent argued, and the court agreed, that since the request for proceedings was not served on or copied to the respondent, the applicants could not invoke Rule 82(1) and (2) even if leave were granted. This independently undermined the application.

p. 4

Legal principles established

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  • Rule 4 jurisdiction is discretionary and unfettered; delay must be satisfactorily explained and the discretion exercised judicially
  • A plausible and satisfactory explanation for delay is the key to unlocking the court's discretionary power

Court orders

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  1. 1.Application disallowed with costs to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 77(1)
  • Court of Appeal RulesRule 82(1) and (2)

Cases cited (5)

  • Leo Sila Mutiso Vs. Rose Hellen Wangari Mwangi
    [1999] 2 EA 231

    Settled principles governing extension of time under Rule 4

  • Fakir Mohamed Vs. Joseph Mugambi & 2 Others
    [2005] eKLR

    Settled principles governing extension of time under Rule 4

  • Muringa Company Ltd Vs. Archdiocese of Nairobi Registered Trustees
    [2020] eKLR

    Settled principles governing extension of time under Rule 4

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

    Settled principles governing extension of time under Rule 4

  • Athuman Nusura Juma Vs. Afwa Mohamed Ramathan
    CA No. 227 of 2015

    Settled principles governing extension of time under Rule 4

On appeal from
High Court of Kenya at Nairobi
HCCC No. 185 of 2009
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules

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, "Wambui & another v Mwangi", Case Analysis (2022). Civil Application E122 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1005/eng@2022-09-23

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