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Court of AppealDismissedCivil Application E054 of 2021

Gachoka & another (Suing as the legal representative of the Estate of Ann Muthoni (Deceased)) v Kenya Power & Lighting Company Ltd

Court of Appeal
26 October 2022
1,276 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 appeal, showing courts will not excuse unexplained delays, especially after judgment money is paid.

What this practically means

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Executive summary

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This is a ruling by Sichale, JA sitting as a single judge of the Court of Appeal at Nakuru on a motion dated September 15, 2021 by Nathan Gachoka and Charles Ng'ang'a Mwaura, legal representatives of the estate of Ann Muthoni (deceased), seeking extension of time to file and serve a record of appeal against the judgment of Mulwa, J of the High Court at Nakuru delivered on November 17, 2016 in Civil Appeal No. 110 of 2013. The applicants lodged a notice of appeal on November 25, 2016 and requested certified proceedings, but only learned on December 7, 2019 that proceedings were ready, and did not file the record until September 2021, blaming counsel's inadvertence and Covid-19. The respondent opposed, citing a five-year inordinate delay and noting the decretal amount had been fully settled. Applying the settled principles from Fakir Mohamed v Joseph Mugambi (length and cause of delay, arguability, prejudice), the court held the delay inordinate and unjustifiable: the explanation of staff inadvertence was vague and unverified, no draft memorandum of appeal was attached, and Covid-19 could not excuse a delay that predated the pandemic. The respondent would be greatly prejudiced as the decretal sum had been paid. The motion was dismissed in its entirety.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants should be granted extension of time to file and serve the record of appeal out of time
  2. 2.Whether the delay of 5 years was explained and justified
  3. 3.Whether the intended appeal has chances of success
  4. 4.Whether the respondent would suffer prejudice if the extension is granted

Key legal issues

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01

Whether the delay in filing the record of appeal was adequately explained

Holding

The delay of 5 years was inordinate and unjustifiable; the explanation of counsel's inadvertence compounded by Covid-19 was implausible since proceedings were ready in December 2019, before the pandemic.

Reasoning

The court found that proceedings were ready for collection on December 7, 2019, yet the application was not filed until September 2021. The staff blamed for inadvertence was not identified nor did they swear an affidavit. Only one handwritten letter evidenced follow-up. Covid-19 could not explain a delay that predated it.

p. 2
02

Whether the intended appeal had chances of success

Holding

The court could not make a definitive finding sitting as a single judge, and the applicants had not attached a draft memorandum of appeal.

Reasoning

A single judge cannot definitively assess the merits of an intended appeal. The applicants compounded this by failing to attach a draft memorandum of appeal, depriving the court of any material to evaluate arguability.

p. 3
03

Whether the respondent would be prejudiced

Holding

The respondent would be greatly prejudiced because the entire decretal amount had already been settled.

Reasoning

Extension of time would reopen a matter in which the respondent had already paid the whole decretal amount, causing significant prejudice.

Legal principles established

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  • The court has wide and unfettered discretion under rule 4 to extend or decline time, but must exercise it judiciously, considering length and cause of delay, chances of the appeal succeeding, and prejudice.

Court orders

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  1. 1.The applicants' motion dated September 15, 2021 is dismissed in its entirety

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nakuru
Nakuru High Court Civil Appeal No. 110 of 2013
Jurisdiction invoked
Rules 4, 82 and 47 of the Court of Appeal Rules; sections 3A & 3B of the Appellate Jurisdiction Act (Cap 9)

Relief refused

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Extension of time to file and serve the record of appeal out of time

The delay of 5 years was inordinate and unjustifiable; reasons given for the delay were not plausible; the decretal amount had already been settled, prejudicing the respondent

Costs

The application sought that costs abide the outcome of the appeal; no costs order appears in the final orders; the motion was dismissed in its entirety.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The court has wide and unfettered discretion in deciding whether to extend time or decline the same. However, in exercising its discretion, the court should do so judiciously.
p. 2Discretion under rule 4
There has therefore been a delay of 5 years which delay is certainly inordinate and unjustifiable for reasons which I will enumerate hereunder.
p. 2Inordinate delay
The upshot of the foregoing is that the applicants motion dated September 15, 2021 is devoid of merit and the same is hereby dismissed in its entirety.
p. 3Final orders

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, "Gachoka & another (Suing as the legal representative of the Estate of Ann Muthoni (Deceased)) v Kenya Power & Lighting Company Ltd", Case Analysis (2022). Civil Application E054 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1192/eng@2022-10-26

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