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Court of AppealDismissedCivil Application 394 of 2019· [2022] KECA 1407 (KLR)

Muli v Kanyi

Court of Appeal
16 December 2022
PGPM Gachoka
1,810 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 to appeal because the applicant couldn't properly explain a six-month delay.

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 Gachoka JA on a notice of motion dated December 17, 2019 seeking extension of time to file and serve a notice and record of appeal out of time, directed against a ruling of the High Court of Kenya at Nairobi (O.A. Angote J) delivered on April 5, 2019 in Environment and Land Court Case No. 350 of 2017. The applicant deponed that he filed his notice of appeal within time, applied for certified proceedings, but faced financial difficulties and that certified proceedings were supplied after the period for filing the appeal had lapsed. The respondent did not oppose the application, but the court held it was nonetheless obliged to make a merit determination. Applying the settled rule 4 principles from Leo Sila Mutiso, Fakir Mohamed, Muringa Company and Chemaringo, the court found the applicant's explanation fell short: he did not state when he received the proceedings, filed no certificate of delay, and offered only a bare assertion of financial hardship to explain a six-month delay in bringing the extension application. The court concluded the applicant had approached it in a casual manner and failed to bring himself within rule 4. The application was dismissed with no orders on costs. The decision binds the High Court and subordinate courts on the application of the rule 4 discretion, though it applies settled principles rather than establishing new law.

Key legal issues

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01

Whether the applicant satisfied the rule 4 conditions for extension of time

Holding

The application failed because the applicant gave no cogent explanation for the six-month delay in filing the extension application and did not state when he received the certified proceedings

Reasoning

The court applied the settled Mutiso factors: length of delay, reason for delay, chances of success and prejudice. The affidavit only explained filing of the notice of appeal and request for proceedings; financial hardship was asserted bare. Without a certificate of delay or statement of when proceedings were received, time could not be computed under rule 84 and the delay could not be assessed as reasonable. Casual prosecution of the application weighed against the applicant.

p. 3

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary, taking into account the length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's flow of discretionary favour
  • The law sets no minimum or maximum period of delay; each case is determined on its facts

Court orders

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  1. 1.The application for extension of time is dismissed
  2. 2.No orders on costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 5(1)
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 84

Cases cited (5)

  • Julius Kamau Kithaka vs Waruguru Kithaka Nyaga & 2 others
    [2013] eKLR (CA No 14 of 2013)

    Discretion under rule 4 is wide, unfettered, and must be exercised judiciously and upon reasons

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

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

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

    Rule 4 discretion is unfettered; relevant factors are not exhaustive

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

    Non-exhaustive considerations including conduct of parties, right of appeal, public interest, prima facie chances of success

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

    No minimum or maximum period of delay; satisfactory explanation is the key

On appeal from
High Court of Kenya at Nairobi (Environment and Land Court)
Environment and Land Court Case No. 350 of 2017
Jurisdiction invoked
Rules 4, 5(1), (2)(b) of the Court of Appeal Rules

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, "Muli v Kanyi", Case Analysis (2022). Civil Application 394 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1407/eng@2022-12-16

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