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Court of AppealPartially AllowedMotion dated May 18, 2023 (notice of appeal against Makueni HCCA No 98 of 2019)· [2023] KECA 1161 (KLR)

Maruti v Michuki & 2 others (Civil Appeal (Application) E341 of 2023) [2023] KECA 1161 (KLR)

Court of Appeal of Kenya
6 October 2023
SKS. Ole Kantai
756 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal let a man file his appeal late, accepting his disability and distance as a reasonable explanation for the two-month delay.

What this practically means

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Executive summary

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This is a ruling by Ole Kantai, JA, sitting singly in the Court of Appeal at Nairobi, on the applicant Evans Simiyu Maruti's Motion seeking extension of time to file a notice of appeal out of time against the judgment of Dulu, J., delivered on March 21, 2023 in Makueni HCCA No 98 of 2019. The applicant, an amputee following a road traffic accident who resides in Kitale, explained that he could not travel to peruse the judgment, and that the judge's transfer from Makueni to Voi had caused movement of the court file, delaying his lawyers. No replying affidavit or submissions were filed by the respondents despite service. Applying the well-established principles in Leo Sila Mutiso v Rose Wangari Mwangi, as reiterated in Maina Johana Miano v Leah Wanyara Gichohi, and guided by Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution, the court found the delay of less than two months was not inordinate and the explanation was reasonable. While the prospects of the intended appeal — which would be a second appeal from the High Court sitting on first appeal — were not immediately obvious, the court held that this was not a major consideration at this stage. The Motion was allowed; the notice of appeal was to be lodged within fourteen days, and the costs of the Motion were made costs in the appeal. This ruling does not disturb the decision below; it merely opens the door to an appeal.

Key legal issues

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01

Whether the delay in filing the notice of appeal was inordinate and satisfactorily explained

Holding

The delay of less than two months was not inordinate and the explanation — the applicant's location in Kitale, his disability, and the movement of the court file due to the judge's transfer — was reasonable.

Reasoning

The court found the judgment was delivered March 21, 2023 and the Motion dated May 18, 2023, less than two months later. The applicant, an amputee based in Kitale, could not travel to peruse the judgment, and the judge's transfer from Makueni to Voi caused movement of the court file, delaying the lawyers. These circumstances satisfied the court that the delay was neither inordinate nor unexplained.

p. 2
02

The weight to be given to the chances of the intended appeal succeeding

Holding

Chances of success are not a major consideration at this stage; although success was not immediately obvious in what would be a second appeal, the application was allowed.

Reasoning

The court noted the intended appeal would be a second appeal from the High Court sitting on first appeal, making prospects of success not immediately obvious. However, applying the established principles, arguability or prospects of success is not determinative in an extension-of-time application where the delay is minimal and explained.

p. 2

Legal principles established

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  • In an extension-of-time application, the court considers the length of and explanation for the delay, and the chances of the intended appeal, the latter not being a major consideration.

Court orders

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  1. 1.Time extended for the applicant to file and lodge a notice of appeal out of time
  2. 2.Leave granted to lodge an appeal out of time against the judgment of March 21, 2023 in Makueni HCCA No 98 of 2019
  3. 3.Notice of Appeal to be lodged within fourteen days
  4. 4.Costs of the Motion to be in the appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Constitution of Kenya, 2010Article 159

Cases cited (3)

  • Leo Sila Mutiso v Rose Wangari Mwangi
    Civil Application No NAI 255 of 1997
  • Maina Johana Miano v Leah Wanyara Gichohi
    [2019] eKLR
  • Issa Masudi Mwabumba v Alice Kavenya Mutunga & 4 others
    [2012] eKLR
On appeal from
High Court of Kenya
Makueni HCCA No 98 of 2019
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal, Sections 3A and 3B of the Appellate Jurisdiction Act (oxygen principle)

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, "Maruti v Michuki & 2 others (Civil Appeal (Application) E341 of 2023) [2023] KECA 1161 (KLR)", Case Analysis (2023). Motion dated May 18, 2023 (notice of appeal against Makueni HCCA No 98 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1161/eng@2023-10-06

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