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Court of AppealDismissedCivil Application E462 of 2023· [2023] KECA 1666 (KLR)

Mbugua & another (Suing as Legal Representatives of the Estate of Joseph Mbugua Njuguna) v Kariuki & another

Court of Appeal
15 December 2023
1,360 words in judgment
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The bottom line

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The Court of Appeal refused to forgive a nearly one-year delay in filing an appeal because the applicants could not precisely explain when and how they learned of the judgment.

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 (Musinga, JA) on two related applications by Harrison Njuguna Mbugua and Loise Njeri Mbugua, suing as legal representatives of the estate of Joseph Mbugua Njuguna, seeking extension of time to file an appeal against the judgment and decree of the Environment and Land Court at Nairobi (Oguttu, J.) dated 3rd October 2022 in ELC Case No. 7 of 2016. The applicants contended they were never served with the hearing notice for the hearing on 13th June 2022, learned of the judgment only later, and that their right to a fair hearing under Article 50(1) was contravened; they also asserted the intended appeal was arguable and that no prejudice would befall the 1st respondent. The 1st respondent, Wilfred Mbitu Kariuki, maintained that service was effected, that no plausible explanation for the delay was tendered, and that he would be prejudiced. Applying the settled rule 4 principles (length of delay, reason for delay, arguability, and prejudice), the court found a delay of close to one calendar year between the judgment and the notice of appeal dated 28th September 2023. It held that the applicants' explanation lacked specificity as to when and how they learned of the judgment, and that the court cannot speculate; the delay was therefore unreasonable and inexcusable. Because the reason for the delay was unexplained, the court declined to consider the remaining factors, refused the extension, and dismissed the application dated 28th September 2023 with costs to the 1st respondent. The ruling does not disturb the ELC decision, which accordingly stands.

Key legal issues

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01

Whether the delay of close to one year in filing the notice of appeal was satisfactorily explained

Holding

It was not; the applicants failed to depone with precision when or how they learned of the judgment, so the delay was unreasonable and inexcusable

Reasoning

The judgment was delivered on 3rd October 2022 and the 14-day period under rule 77(2) lapsed on or about 17th October 2022, yet the notice of appeal was dated 28th September 2023. The explanation rested on non-service of the hearing notice, but Loise Njeri Mbugua did not state the exact date or period within which she learned of the judgment, nor how she learned of it. The court declined to speculate and concluded the delay was unexplained.

p. 3
02

Whether the court should consider the remaining rule 4 factors where the reason for delay is unexplained

Holding

No; once the reason for delay is not satisfactorily explained, it is superfluous to consider the other factors

Reasoning

The court applied the settled rule 4 principles (length of delay, reason for delay, arguability, prejudice) but held that failure on the second factor alone disposes of the application. Arguability of the intended appeal and absence of prejudice to the respondent were therefore not reached.

p. 3

Legal principles established

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  • In an extension-of-time application the court considers the length of the delay, the reason for the delay, the chances of success of the intended appeal, and the prejudice to the respondent; an unexplained delay is fatal and the court need not consider the remaining factors.
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's flow of discretionary favour.

Court orders

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  1. 1.Dismissal of the application dated 28th September 2023
  2. 2.Costs of the application to the 1st respondent

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 7
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 77(2)
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (5)

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

    Principles for extension of time

  • Fakir Mohammed v Joseph Mugambi & 2 Others
    [2005] eKLR

    Principles for extension of time

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

    Principles for extension of time

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

    Delay must be satisfactorily explained; plausible explanation unlocks discretion

  • Electoral and Boundaries Commission & 6 others
    [2013] eKLR

    Conditions for extension of time (cited by 1st respondent in submissions)

On appeal from
Environment and Land Court at Nairobi
ELC Case No. 7 of 2016 (OS)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and section 7 of the Appellate Jurisdiction Act (invoked by applicants)

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, "Mbugua & another (Suing as Legal Representatives of the Estate of Joseph Mbugua Njuguna) v Kariuki & another", Case Analysis (2023). Civil Application E462 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1666/eng@2023-12-15

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