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Court of AppealDismissedCriminal Appeal (Application) E004 of 2020· [2022] KECA 1331 (KLR)

JSN & 5 others v Sambu & 5 others

Court of Appeal
2 December 2022
ASAsike-Makhandia
1,597 words in judgment
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The bottom line

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The Court of Appeal refused to extend time to appeal because the applicant never showed what arguable grounds the appeal would raise.

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 Asike-Makhandia JA on a notice of motion dated October 21, 2020, brought under rules 4, 41, 42 and 47 of the Court of Appeal Rules, seeking extension of time to file and serve a notice of appeal out of time against a ruling of the High Court (Kimaru J) delivered on September 29, 2020 in Milimani Criminal Revision No. 4 of 2020. The underlying dispute arose from the applicant's failed attempt to obtain leave to institute a private prosecution against the respondents, whom he alleged intended to kill him; the Chief Magistrate had granted leave, but the High Court on revision set aside that order, finding that neither the police nor the Director of Public Prosecutions had been heard despite allegations of inaction. The applicant attributed the delay in lodging the notice of appeal to late receipt of the certified ruling and Covid-19-related financial constraints. The respondents conceded the delay was not inordinate but contended that no reasons were given and, critically, that no draft memorandum of appeal was exhibited to show the intended appeal was arguable. The court agreed the delay of slightly over a week was not inordinate, but found nothing on record - no draft memorandum, affidavit material, or submissions - to demonstrate an arguable appeal, a core requirement under the Fakir Mohamed principles. The application was accordingly dismissed with no orders as to costs. The decision underscores that applicants for extension of time should always annex a draft memorandum of appeal evidencing arguability.

Key legal issues

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01

Factors governing extension of time under rule 4

Holding

The discretion is unfettered; period of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent are all relevant but not exhaustive factors.

Reasoning

The court restated the principles in Fakir Mohamed v Joseph Mugambi, noting the discretion is broad and no fixed limit exists on the factors to be considered provided they are relevant. The court retains the ultimate discretion to allow or disallow extension of time as it deems just.

p. 3
02

Whether the intended appeal was arguable

Holding

The intended appeal was not shown to be arguable because no draft memorandum of appeal or other material disclosed the grounds to be pursued, defeating the application despite the delay being inordinate.

Reasoning

Although the delay of roughly a week was not inordinate and Covid-19 was cited, the court could not infer arguability from the material before it. The absence of a draft memorandum left the court with nothing to conclude on a core requirement, so the discretion could not be exercised in the applicant's favour.

p. 3

Legal principles established

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  • An applicant for extension of time must demonstrate, among other things, that the intended appeal is arguable; without at least a draft memorandum or material showing arguability, the discretion will not be exercised in the applicant's favour.
  • The court's discretion under rule 4 on extension of time is unfettered and guided by relevant factors including period and reason of delay, arguability of the appeal and prejudice to the respondent.

Court orders

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  1. 1.The application for extension 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 41
  • Court of Appeal Rulesrule 42
  • Court of Appeal Rulesrule 47

Cases cited (5)

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

    Principles governing exercise of discretion under rule 4 in extension-of-time applications.

  • Mutiso vs Mwangi
    Civil Appl Nai 255 of 1997 (UR)

    Relevant factors in extension of time.

  • Mwangi vs Kenya Airways Ltd
    [2003] KLR 486

    Relevant factors in extension of time.

  • Major Joseph Mwereri Igweta vs Murika M'Ethare & Attorney General
    Civil Appl Nai 8/2000 (UR)

    Relevant factors in extension of time.

  • Murai vs Wainaina (No 4)
    [1982] KLR 38

    Relevant factors in extension of time.

On appeal from
High Court of Kenya at Nairobi (Milimani)
Milimani Criminal Revision No. 4 of 2020
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), in an intended appeal from the High Court's revisional jurisdiction

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, "JSN & 5 others v Sambu & 5 others", Case Analysis (2022). Criminal Appeal (Application) E004 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1331/eng@2022-12-02

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