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Court of AppealDismissedCivil Appeal (Application) E339 of 2022· [2022] KECA 1302 (KLR)

Mukuha v Mukuha & another (Civil Appeal (Application) E339 of 2022)

Court of Appeal
2 December 2022
GNG W Ngenye-Macharia
1,429 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to extend time for filing an appeal because the intended appeal had no realistic chance of success.

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 Ngenye-Macharia, JA, on a notice of motion dated August 29, 2022 brought under rules 4 and 75 of the Court of Appeal Rules, seeking extension of time to lodge an appeal against a High Court ruling of Chepkwony, J dated July 29, 2022 in Civil Case No. 45 of 2013. The High Court had granted the applicant leave to amend his pleadings to substitute the deceased first respondent with his legal administrators, but denied the prayer to join Naivas Limited as a necessary party. The applicant explained the delay by the court's August vacation delaying receipt of the ruling, annexing letters requesting certified copies. The court held the one-month delay was not inordinate and the explanation reasonable. However, on the chances of success, the court noted that the High Court had declined joinder because Emukule, J in Succession Cause No 92 of 2011 had held the applicant had no legal or equitable interest in Naivas Limited, a judgment not appealed. The applicant could only suggest, not confirm, a pending appeal (Nakuru Civil Appeal No 204 of 2016) against that ruling. The court found the applicant cagey on this factual point and held the intended appeal would raise an issue directly before a court of equal status, the Court of Appeal at Nakuru, and had no chance of success. The motion was dismissed with no orders as to costs. The respondents filed no response.

Key legal issues

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01

Whether the applicant deserved an extension of time to appeal out of time

Holding

The application failed because the intended appeal had no chances of success; the joinder of Naivas Ltd was already the subject of a pending appeal before the Court of Appeal at Nakuru

Reasoning

The court accepted the one-month delay was not inordinate and the explanation reasonable, but found the intended appeal unarguable. The applicant could not categorically confirm the existence of an appeal against Emukule, J's succession ruling, making him cagey; the issue was directly before a court of equal status.

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party, who must lay a basis to the satisfaction of the court
  • In exercising discretion under rule 4, the court considers the period and reason for delay, chances of success, prejudice, and other relevant but not exhaustive factors

Court orders

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  1. 1.The notice of motion dated August 29, 2022 seeking extension of time to file an appeal out of time is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75

Cases cited (5)

  • Muringa Company Ltd v the Archdiocese of Nairobi Registered Trustees
    (2020) eKLR
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    (2018) eKLR
  • Fakir Mohammed v Joseph Mugambi & 2 Others
    [2005] eKLR

    Factors relevant to extension of time under rule 4

  • Nicholas Kiptoo arap Korir Salat v IEBC & 7 Others
    Supreme Court Application No 16 of 2014

    Underlying principles for exercise of discretion to extend time

  • In the matter of the Estate of Peter Kago (Succession Cause No 92 of 2011)
    dated October 31, 2014

    Held applicant had no legal or equitable interest in Naivas Limited (Emukule, J)

On appeal from
High Court of Kenya at Nairobi
Civil Case No. 45 of 2013
Jurisdiction invoked
Rules 4 and 75 of the Court of Appeal Rules (extension of time to file an appeal out of time)

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, "Mukuha v Mukuha & another (Civil Appeal (Application) E339 of 2022)", Case Analysis (2022). Civil Appeal (Application) E339 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1302/eng@2022-12-02

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