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Court of AppealDismissedCivil Application 208 of 2020· [2022] KECA 1411 (KLR)

Gachugu v Karaine & 3 others

Court of Appeal
16 December 2022
PGPM Gachoka
2,726 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 a two-year unexplained delay outweighed even arguable appeal grounds.

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 July 29, 2020 seeking extension of time to file a notice of appeal and record of appeal out of time against the judgment of Christine Ochieng J of the Environment and Land Court at Kajiado delivered on February 20, 2018, in which the applicant, the 3rd respondent and the 4th respondent were ordered to refund Kshs 9,000,000 with interest at 21% per annum. The applicant, an estranged wife of the 3rd respondent, alleged her former advocates were negligent, that she only learnt of the judgment on June 28, 2019, and cited her advanced age and the Covid-19 pandemic. The respondents countered that the delay of almost two years was unexplained. The judge restated the settled Rule 4 principles: the discretion is wide, unfettered and not confined to fixed factors, but must be exercised judiciously on cogent reasons. He found the delay of over two years inexcusable, noting in particular that although the current advocates were instructed on July 1, 2019 and immediately perused the file, they took a further year to file the application, for which no explanation was given. He held that mere allegations of an advocate's negligence do not suffice and that discretion is not an act of mercy. Although the intended appeal raised arguable grounds and the property had been sold at auction, the inordinate delay was decisive. The motion was dismissed with no orders as to costs.

Key legal issues

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01

Whether the delay of over two years in filing the application for extension of time was satisfactorily explained

Holding

The delay was not properly explained; blame on previous advocates, the applicant's age and Covid-19 were not convincing, and no explanation was given for the current advocates' one-year delay.

Reasoning

The court found the applicant learnt of the judgment in June 2019 and instructed new advocates on July 1, 2019, yet the application was only filed on July 29, 2020. No explanation was offered for that one-year delay. Mere allegations of former advocates' negligence are insufficient; a party must show vigilance. The exercise of discretion requires cogent reasons, not sympathy.

p. 5
02

Whether the intended appeal was arguable

Holding

The memorandum of appeal raises arguable grounds that may possibly succeed, but a single judge does not determine the merits with finality.

Reasoning

The judge reiterated that whether an intended appeal has merits is not determined with finality by a single judge, which is why the consideration of chances of success is prefixed with the word 'possibly'. On perusing the memorandum of appeal, the judge found it raised arguable grounds that may succeed and no more.

p. 5
03

Whether prejudice to the respondents outweighed the applicant's interest in an extension

Holding

Although the property had been sold at public auction, the decisive factor was the inordinate and inexcusable delay of over two years.

Reasoning

The judge was required to balance the injustice to the applicant in denying an extension against prejudice to the respondents in granting one. The respondents argued the appeal was overtaken by events as the property had been sold at auction. The judge would have dismissed that argument alone, but the inordinate, inexcusable delay was decisive.

p. 5

Legal principles established

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  • The discretion under Rule 4 is wide and unfettered but must be exercised judiciously and upon reasons, not arbitrarily or capriciously.
  • A party cannot rely on mere allegations of an advocate's negligence; a party must demonstrate vigilance in pursuing their case.
  • Exercise of discretion to extend time is not an act of mercy but a judicious action based on cogent reasons.

Court orders

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  1. 1.Dismissal of the notice of motion dated July 29, 2020
  2. 2.No orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRules 1(2), 4, 31, 39, 41, 42, 43, 47, 53 and 75
  • Appellate Jurisdiction Actsections 3(2), 3A and 3B
  • Constitution of KenyaArticles 27(1), 40, 50(1) and 159(2)(a), (b), (d) and (e)

Cases cited (6)

  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
    [1999] 2 EA 231

    Settled principles for extension of time under Rule 4

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

    Settled principles for extension of time under Rule 4

  • Muringa Company Ltd vs Archdiocese of Nairobi Registered Trustees
    [2020] eKLR

    Settled principles for extension of time under Rule 4

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

    No minimum or maximum period of delay; each case determined on its own facts

  • Athuman Nusura Juma vs Afwa Mohamed Ramathan
    CA No 227 of 2015

    Whether an intended appeal has merits is not determined with finality by a single judge

  • Githere vs. Ndiriri

    Discretion must be exercised judiciously, on sound reasoning and not on whim or caprice

On appeal from
Environment and Land Court at Kajiado
Environment and Land Court Case No. 360 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (2010); sections 3(2), 3A and 3B of the Appellate Jurisdiction Act (Cap 9)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gachugu v Karaine & 3 others", Case Analysis (2022). Civil Application 208 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1411/eng@2022-12-16

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