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Court of AppealDismissedCivil Application E637 of 2021· [2022] KECA 1019 (KLR)

Ngugi & another v Kanogo & 2 others

Court of Appeal
23 September 2022
WKW. Karanja
2,135 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a five-year-delayed defamation appeal, ruling that judgment holders deserve to enjoy their winnings without endless litigation.

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 W. Karanja, JA, on a notice of motion dated February 2, 2022 brought under rules 4, 42, 82 and 90 of the Court of Appeal Rules. The applicants, Joseph Ngugi and The Standard Group PLC, sought an order deeming as properly filed the memorandum and record of appeal lodged on November 1, 2021, following a judgment and decree of L. Njuguna, J of December 6, 2017 in HCCC No. 589 of 2012 awarding Ksh. 27,000,000 in damages in a defamation suit. The applicants blamed a change of advocates and a communication breakdown for the failure to file the record within the sixty days prescribed by rule 82. The respondents, who had already received half the decretal sum with the other half in a joint interest-earning account, opposed, citing an unexplained delay of six to eight months and overall laxity. Applying the principles in Leo Sila Mutiso v. Hellen Wangari Mwangi and Muringa Company Ltd, the court found that although the Notice of Appeal was filed in time and proceedings requested promptly, there was no follow-up with the High Court registrar for four years; the record showed the parties' advocates were in constant communication, undermining the claimed breakdown. The collective delay of 4-5 years was held inordinate and unexplained, and the respondents, holding a judgment for five years, would be prejudiced. The application was dismissed with costs to the respondents. This ruling binds subordinate courts on the application of the extension-of-time principles.

Key legal issues

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01

Whether the inordinate delay of 4-5 years was satisfactorily explained

Holding

The delay was inordinate and the explanation, including alleged communication breakdown between advocates, was implausible given ongoing activity in the matter.

Reasoning

The Notice of appeal was filed in time and proceedings requested within 30 days, but there was no follow-up with the High Court registrar for 4 years. The record showed the parties' advocates were in constant communication, taxation proceeded, and the notification that proceedings were ready went to the firm still on record. The supporting affidavit did not present the true picture.

p. 4
02

Whether the respondents would suffer prejudice if extension were granted

Holding

Partial payment and deposit of half the decretal sum in a joint interest-earning account did not excuse the applicants' conduct; keeping the respondents in court longer would be prejudicial.

Reasoning

Although half the decretal sum had been paid and the other half deposited in a joint interest-earning account, the court held this did not excuse the applicants' conduct. The respondents had held a judgment for five years and were entitled to enjoy its full fruits rather than remain in litigation due to the applicants' unwarranted lethargy.

p. 4
03

Whether the intended appeal was arguable

Holding

The court did not find it necessary to find in the applicants' favour on arguability given the failure on delay and prejudice.

Reasoning

The applicants relied on the weighty defamation issues raised in the appeal and the absence of prejudice. The court applied the established extension-of-time principles, weighing the chances of success as one factor, but found the applicants undeserving of the discretion overall on the delay and prejudice findings.

Legal principles established

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  • Rule 4 confers an unfettered discretion on the Court to extend time as it deems just, guided by the length of and reason for the delay, the chances of the appeal succeeding and the prejudice to the respondent.
  • A party who has held a judgment for years should be allowed to enjoy the fruits of that judgment; unexplained lethargy in prosecuting an appeal is prejudicial to the judgment holder.

Court orders

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  1. 1.The application dated February 2, 2022 is dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 42
  • Court of Appeal Rulesrule 82
  • Court of Appeal Rulesrule 90

Cases cited (4)

  • Liberato Kivanga Manga v. Prime Bank Limited
    [2021] eKLR

    Principles for extension of time: length and reasons for delay, chances of appeal succeeding, prejudice to respondent.

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

    Set out the classic principles guiding extension of time applications.

  • Fakir Mohammed v. Joseph Mugambi & 2 Others
    [2005] eKLR

    Cited as a further authority on extension of time principles.

  • Muringa Company Ltd v. Archdiocese of Nairobi Registered Trustess
    [2020] eKLR

    Expounded considerations for extension of time including conduct of parties, balancing interests and chances of success.

On appeal from
High Court at Nairobi
HCCC No. 589 of 2012
Jurisdiction invoked
Rules 4, 42, 82 and 90 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, "Ngugi & another v Kanogo & 2 others", Case Analysis (2022). Civil Application E637 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1019/eng@2022-09-23

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