Mwai Kibaki Foundation v Wanjiru & another (Suing as Personal Representatives of David Kihungu Murugi)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal, ruling that Christmas vacation time doesn't count toward appeal deadlines and Covid-19 delays were excusable.
What this practically means
#Executive summary
#Key legal issues
#Computation of the 90-day period for filing the record of appeal
The Christmas vacation (21st December 2019 to 13th January 2020, both days inclusive) is excluded, so the period lapsed on 1st April 2020, not 10th March 2020 as the respondent contended
Rule 3 of the Court of Appeal Rules, 2010 provides that the Christmas vacation period is not reckoned in the computation of time. Applying that rule to the order of 10th December 2019, the 90 days ran to 1st April 2020. The court accepted the appellant's computation over the respondent's, correcting the respondent's arithmetic before turning to whether the delay was nonetheless excusable.
Whether the delay in filing the record of appeal was excusable
The delay was excusable: the request for certified proceedings complied with rule 82, the delay in obtaining the certified judgment was attributable to Covid-19 disruptions, and the record was filed on 11th August 2020, before the striking-out application
The appellant requested certified copies in writing within 30 days, satisfying rule 82. Although the proceedings were certified on 9th March 2020 before the first Covid-19 case, the court took judicial notice that the pandemic altered court and registry functions, and was satisfied the delay in obtaining the certified judgment was beyond the appellant's control. The record was filed and served on 11th August 2020, close to a year before the application, and after the Deputy Registrar issued a Certificate of Delay.
Legal principles established
#- The period of the Christmas vacation is excluded in the computation of time under the Court of Appeal Rules, 2010
- A request for certified copies of proceedings made in writing within 30 days of the decision, and served, engages the proviso to rule 82(1) excluding the time certified by the registrar
- Delay occasioned by circumstances beyond an appellant's control, including the Covid-19 pandemic's disruption of court and registry functions, may excuse failure to file a record of appeal within the directed period
Court orders
#- 1.The Notice of Motion dated 19th July 2021 seeking to strike out the notice of appeal is dismissed
- 2.The costs of the application shall be in the main appeal
- On appeal from
- High Court at Nairobi
- High Court Civil Appeal No. 97 of 2018
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 47, 75, 82, 83 and 84 of the Court of Appeal Rules, 2010, with Articles 40, 48, 50(1) and 159 of the Constitution invoked by the applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwai Kibaki Foundation v Wanjiru & another (Suing as Personal Representatives of David Kihungu Murugi)", Case Analysis (2023). Civil Appeal (Application) 265 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1659/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.