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Court of AppealDismissedCivil Appeal (Application) E488 of 2021· [2022] KECA 1227 (KLR)

Mutegi (Suing on behalf of the estate of the late Julliet Kangai Mutegi) v Warshow & 2 others

Court of Appeal
4 November 2022
PGPM Gachoka
2,476 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to forgive a late appeal because the applicant never explained the delay, even a short one.

What this practically means

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Executive summary

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This is a ruling by Gachoka, JA, sitting as a single judge of the Court of Appeal at Nairobi, on a notice of motion dated March 30, 2022 by Priscilla Ciamwari Mutegi, seeking extension of time to file a record of appeal out of time and a declaration that the record of appeal filed on August 27, 2021 be deemed properly filed. The intended appeal lies against a ruling of the High Court (Msagha Mbogholi, J.) delivered on May 27, 2021. The respondents opposed, pointing out that the applicant's account of the delay contradicted the certificate of delay, that the applicant had been warned since September 1, 2021 that the appeal was out of time, and that the extension application itself was filed some 7 months late without explanation. Applying the settled Rule 4 principles from Leo Sila Mutiso, Fakir Mohamed, Muringa Company and Andrew Kiplagat Chemaringo, the court found that the certificate of delay explained only 8 days; the record of appeal was filed 23 days late without explanation; and no explanation was offered for the 7-month delay in bringing the application despite warning emails and a pending strike-out application. The court held that an applicant must explain the delay irrespective of its length, and that the applicant's belief that the delay was not inordinate is irrelevant. It also found the delay prejudicial to the respondents' right to expeditious disposal, the underlying dispute still pending in the magistrate's court. The application was dismissed with costs to the respondents. The decision binds the parties and leaves the pending strike-out application unaffected.

Key legal issues

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01

Whether the delay in filing the record of appeal and in filing the extension application was explained

Holding

The delay was not explained; the applicant's dates contradicted the certificate of delay and no explanation was given for the 7-month delay in filing the application despite warnings.

Reasoning

The certificate of delay only covered 8 days from lodgment of the request for proceedings until the proceedings were ready for collection. The record of appeal was filed 23 days late, unexplained. The applicant was warned by email on September 1, 2021 and by a strike-out application filed September 21, 2021, yet took 7 months to file the extension application without explanation. The applicant's belief, on advice of counsel, that the delay was not inordinate does not amount to an explanation.

p. 4
02

Chances of the intended appeal succeeding

Holding

The court declined to pronounce on the merits, leaving that question to the bench that will hear the appeal.

Reasoning

The judge noted that the chances of success of the intended appeal are best left to the full bench hearing the appeal, citing Athuman Nusura Juma v Afwa Mohamed Ramadhan. Since the application failed on the explanation for delay, no finding on merits was necessary.

p. 5
03

Prejudice to the respondents

Holding

The applicant's delay was detrimental to the respondents' right to a quick and expeditious disposal of the hearing, as the underlying dispute remains pending in the magistrate's court.

Reasoning

The dispute is still pending in the magistrate's court and was considered in the high court. The delay by the applicant prejudices the respondents' entitlement to expeditious disposal, weighing against extension of time.

p. 5

Legal principles established

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  • An applicant for extension of time must explain the delay irrespective of the number of days; the applicant's belief that the delay is not inordinate is irrelevant.
  • The discretion to extend time under Rule 4 is wide and unfettered but must be exercised judiciously and upon reasons.
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's flow of discretionary favour.

Court orders

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  1. 1.The application for extension of time to file the record of appeal out of time is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 42
  • Court of Appeal Rules, 2010Rule 47
  • Court of Appeal Rules, 2010Rule 82(1)
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Constitution of Kenyaarticle 48
  • Constitution of Kenyaarticle 50(1)

Cases cited (6)

  • Julius Kamau Kithaka v Waruguru Kithaka Nyaga & 2 others
    [2013] eKLR (C.A No. 14 of 2013)

    Principles governing exercise of discretion to extend time: wide, unfettered, exercised judiciously and upon reasons.

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. NAI 255 of 1997

    Factors for extension of time: length of delay, reason for delay, chances of appeal succeeding, prejudice to respondent.

  • Fakir Mohamed v Joseph Mugambi & 2 others
    [2005] eKLR

    Factors under Rule 4 are relevant but not exhaustive; discretion is unfettered.

  • Muringa Company Limited v Archdiocese of Nairobi Registered Trustees
    Civil Application No. 190 of 2019

    Non-exhaustive considerations including conduct of parties, balancing interests, public interest and prima facie chances of success.

  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR

    No minimum or maximum period of delay; delay must be satisfactorily explained.

  • Athuman Nusura Juma v Afwa Mohamed Ramadhan
    CA No. 227 of 2015

    Chances of the intended appeal are best left to the bench that will hear the appeal.

On appeal from
High Court of Kenya at Nairobi
Misc. Civil Application No. E565 of 2020
Jurisdiction invoked
Rules 4, 42 and 47 of the Court of Appeal Rules, 2010; sections 3A and 3B of the Appellate Jurisdiction Act; articles 48 and 50(1) of the Constitution of Kenya

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, "Mutegi (Suing on behalf of the estate of the late Julliet Kangai Mutegi) v Warshow & 2 others", Case Analysis (2022). Civil Appeal (Application) E488 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1227/eng@2022-11-04

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