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Court of AppealDismissedCivil Appeal (Application) 265 of 2019· [2023] KECA 1659 (KLR)

Mwai Kibaki Foundation v Wanjiru & another (Suing as Personal Representatives of David Kihungu Murugi)

Court of Appeal
15 December 2023
1,954 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 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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Musinga, Asike-Makhandia and Ngugi, JJ.A.) on a Notice of Motion dated 19th July 2021 by the respondents, personal representatives of the late David Kihungu Murugi, seeking to strike out the appellant's notice of appeal dated 22nd July 2019 and to vacate stay of execution orders made by consent on 10th December 2019. The underlying dispute arises from a fatal road-traffic matter in which the trial magistrate found the appellant 100% liable and awarded general damages of Kshs. 1,710,000 and special damages of Kshs. 64,700; the High Court (Sergon, J.) upheld liability and general damages but reduced special damages to Kshs. 50,000. The respondents argued the appellant failed to file its record of appeal within the 90 days allowed by the consent order. The court held that the Christmas vacation (21st December 2019 to 13th January 2020) is excluded under rule 3 of the Court of Appeal Rules, 2010, so the period lapsed on 1st April 2020. It further found the delay excusable: the appellant's written request for certified proceedings was made within 30 days as required by rule 82, and the delay in obtaining the certified judgment was attributable to the Covid-19 pandemic, which the court took judicial notice had disrupted court and registry functions. The record of appeal (Civil Appeal No. E239 of 2020) was filed and served on 11th August 2020, before the application. The application was dismissed with costs in the main appeal.

Key legal issues

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01

Computation of the 90-day period for filing the record of appeal

Holding

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

Reasoning

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.

p. 3
02

Whether the delay in filing the record of appeal was excusable

Holding

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

Reasoning

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

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  • 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

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  1. 1.The Notice of Motion dated 19th July 2021 seeking to strike out the notice of appeal is dismissed
  2. 2.The costs of the application shall be in the main appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Court of Appeal Rules, 2010Rule 3
  • Court of Appeal Rules, 2010Rule 47
  • Court of Appeal Rules, 2010Rule 75
  • Court of Appeal Rules, 2010Rule 82
  • Court of Appeal Rules, 2010Rule 83
  • Court of Appeal Rules, 2010Rule 84
  • Court of Appeal Rules, 2010Rule 115
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

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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, "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.