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Court of AppealPartially AllowedCivil Application E034 of 2022

Njoroge v Ndirangu

Court of Appeal
12 October 2022
934 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a 30-day late appeal because the litigant genuinely missed the judgment date, but refused to halt execution.

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 Nakuru (F Sichalet, JA) on a motion dated 23 June 2022 by Grace Wangari Njoroge seeking leave to file a notice of appeal out of time against the judgment of Angima J of the Environment & Land Court at Nyahururu delivered on 5 May 2022 in Nyahururu ELC Case No. 62 of 2018 (OS), which dismissed her statement of defence. The motion, brought under sections 1A, 1B and 3A of the Civil Procedure Act and order 50 rule 6 of the Civil Procedure Rules, also sought leave for new counsel to come on record, deemed filing of the draft notice of appeal, and stay of execution. The respondent filed no response and no submissions were filed. Applying the Fakir Mohamed v Joseph Mugambi principles, the judge held that the 30-day delay was not inordinate, that the applicant's explanation - that she was unaware of the judgment date, was absent at delivery and was acting in person - was plausible, and that refusal would shut out her right of appeal entirely, particularly as the motion was unopposed. The judge declined to make findings on the arguability of the intended appeal to avoid embarrassing the full bench. The motion was allowed in terms of prayers 2, 3 and 4; stay of execution was refused because a single judge cannot issue such orders. The applicant was directed to file and serve the record of appeal within 60 days, failing which the orders would stand vacated, and costs were made to abide the outcome of the intended appeal.

Questions the Court framed

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

  1. 1.Whether the delay of 30 days in filing the notice of appeal was inordinate
  2. 2.Whether the reasons for the delay were plausible and satisfactorily explained
  3. 3.Whether the intended appeal is arguable / has chances of success
  4. 4.Whether the applicant would suffer prejudice if the extension is not granted
  5. 5.Whether leave should be granted to file the notice of appeal out of time and for new counsel to come on record
  6. 6.Whether stay of execution should be granted

Key legal issues

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01

Whether a 30-day delay in filing a notice of appeal is inordinate

Holding

A delay of 30 days was not inordinate in the circumstances.

Reasoning

The judgment was delivered on 5 May 2022 and the notice of appeal ought to have been filed by 19 May 2022; the motion was dated 23 June 2022, a 30-day delay which the single judge did not consider inordinate.

p. 2
02

Whether the reasons for the delay were satisfactorily explained

Holding

The applicant's claim that she was unaware of the judgment date was plausible, as the record showed she was absent at delivery and was acting in person.

Reasoning

The court examined the ELC record and confirmed the applicant was not present when judgment was delivered and appeared to be acting in person; on those circumstances the explanation was accepted to the satisfaction of the court.

p. 2
03

Whether the intended appeal is arguable

Holding

The single judge declined to make any definitive finding on the arguability of the intended appeal to avoid embarrassing the full bench.

Reasoning

A single judge sitting under rule 4 cannot make definitive findings on the merits of the intended appeal; the judge therefore made no further comments on that consideration.

p. 2
04

Whether the applicant would suffer prejudice if the extension was refused

Holding

The applicant would be prejudiced because her right of appeal would be completely shut out, and the respondent had not opposed the motion.

Reasoning

The court found that refusal would extinguish the applicant's right of appeal entirely; the absence of any opposition or submissions from the respondent reinforced the grant of leave.

Legal principles established

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  • In exercising its discretion under rule 4 to extend time, the Court of Appeal has wide and unfettered discretion but must exercise it judiciously, guided by the length of delay, causes of delay, chances of the appeal succeeding and prejudice to the parties.

Court orders

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  1. 1.Leave granted to the firm of Martin Gathumbi & Company Advocates to come on record for the applicant (prayer 2)
  2. 2.Leave granted to file and serve the notice of appeal out of time against the judgment of Angima J delivered 5 May 2022 (prayer 3)
  3. 3.The draft notice of appeal filed herein deemed as duly and properly filed (prayer 4)
  4. 4.Applicant directed to file and serve the record of appeal within 60 days from the date of the ruling, failing which the orders shall stand vacated
  5. 5.Costs of the motion to abide the outcome of the intended appeal

The bench

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

majority

Wrote the judgment

On appeal from
Environment & Land Court
Nyahururu ELC Case No. 62 of 2018 (OS)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), sections 1A, 1B, 3A of the Civil Procedure Act and order 50 rule 6 of the Civil Procedure Rules

Relief refused

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Stay of execution pending the hearing and determination of the application and the intended appeal

A single judge of the Court of Appeal cannot issue stay of execution orders in such circumstances

p. 2

Costs

The costs of the motion shall abide the outcome of the intended appeal.

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 to extend time
the length of the delay, the causes of the delay, the possibility of the appeal succeeding and prejudice to be occasioned to the parties.
p. 2Fakir Mohamed considerations for extension of time
Accordingly, the applicant’s motion dated June 23, 2022, is merited and I accordingly allow the same in in terms of prayers 2, 3 and 4 thereof.
p. 2Final orders - extension of time granted
The applicant is hereby directed to file and serve the record of appeal within 60 days from the date of this ruling failure to which these orders shall stand vacated.
Final orders - conditional direction
The costs of the motion shall abide the outcome of the intended appeal.
p. 2Final orders - costs

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, "Njoroge v Ndirangu", Case Analysis (2022). Civil Application E034 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1199/eng@2022-10-12

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