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Court of AppealAllowedCivil Appeal (Application) 240 of 2020· [2022] KECA 1252 (KLR)

University of Nairobi v Songa Ogoda & Associates

Court of Appeal
7 November 2022
LKL. Kimaru
838 words in judgment
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The bottom line

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Kenya's Court of Appeal excused a nine-day filing delay caused by Covid-19 lockdowns and e-filing problems, letting the University of Nairobi's appeal proceed.

What this practically means

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Executive summary

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The University of Nairobi applied under rules 4, 41, 44 and 45 of the Court of Appeal Rules, 2022 for a nine-day extension of time so that its notice of motion seeking leave to appeal against a High Court ruling (F. Tuiyott, J, dated 20 July 2020 in Nairobi HC Misc. Cause No. E024 and E089 of 2019), filed on 12 August 2020, could be deemed filed and served on time. The applicant explained that the ruling was delivered virtually on 20 July 2020, a copy was only supplied on 3 August 2020, and Covid-19 restrictions plus teething problems with the judiciary's newly rolled-out online filing system prevented timely filing. The application was unopposed; the respondent filed no response. Kimaru, JA, applying the factors in Fakir Mohammed v Joseph Mugambi & 2 Others [2005] eKLR - delay, reasons for delay, chances of success, prejudice and related considerations - held that the court's discretion under rule 4 is unfettered and that the applicant's explanation was excusable. The court took judicial notice of the Covid-19 pandemic, government lockdowns and the initial challenges of the e-filing platform. The application dated 8 October 2022 was allowed: time was extended by nine days and the motion filed on 12 August 2020 was deemed properly filed and served on time. The court made no order as to costs. This is a single-judge interlocutory ruling; it does not disturb the High Court's decision, which remains subject to the intended application for leave to appeal.

Key legal issues

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01

Extension of time to file a motion for leave to appeal

Holding

The court exercised its unfettered discretion under rule 4 in the applicant's favour, finding the nine-day delay excusable due to Covid-19 restrictions and teething problems with the judiciary's online filing system.

Reasoning

The court applied the Fakir Mohammed factors: period and reason for delay, prejudice and public importance. It took judicial notice of Covid-19 lockdowns and the challenges of the newly rolled-out e-filing system, concluding the explanation was excusable and the application unopposed.

p. 2

Legal principles established

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  • Under rule 4 of the Court of Appeal Rules, 2022, the Court of Appeal has an unfettered discretion to extend time, guided by relevant factors including delay, reasons for delay, chances of success and prejudice.

Court orders

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  1. 1.Time for filing the notice of motion seeking leave to appeal extended by nine (9) days so that the motion filed on August 12, 2020 is deemed properly filed and served on time
  2. 2.No orders as to costs
On appeal from
High Court of Kenya at Nairobi
HC Misc. Cause No. E024 and E089 of 2019
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022

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, "University of Nairobi v Songa Ogoda & Associates", Case Analysis (2022). Civil Appeal (Application) 240 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1252/eng@2022-11-07

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