Kimuhu v Ngobi (Administrator in the Estate of Richard Moses Ngobi (Dcd) & another (Civil Application E415 of 2023) [2024] KECA 669 (KLR)
The bottom line
#Kenya's Court of Appeal refused to excuse a 78-day late appeal because the applicant offered no evidence of her claimed illness.
What this practically means
#Executive summary
#Key legal issues
#Reason for the delay
The applicant's claim of ill health was unsupported by evidence and did not excuse the 78-day delay; she was spurred into action only by a demand letter for costs.
The applicant alleged advanced age and ill health prevented her from instructing counsel, but tendered no evidence of the severity of the illness, which could have been given by phone or through her daughter. Her counsel, being knowledgeable, ought to have followed up for instructions. She lost interest and was prompted only by the demand for payment of taxed costs.
Arguability of the intended appeal
The applicant did not attach a draft memorandum of appeal, and notably had not challenged the High Court costs order or the Taxing Master's decision, weakening the prospects of the intended appeal.
The intended appeal, per the Notice of Appeal, sought to challenge the ELC order staying her suit pending payment of costs, yet she had not appealed the underlying costs order or the taxation. Arguability requires only that the appeal be possibly arguable, not that it succeed, but the failure to lay grounds diminished the claim.
Balance of interests and prejudice
Despite a tentative observation favouring the applicant, the court concluded the application lacked merit and dismissed it, balancing the respondents' right to enjoy the fruits of their judgment against the applicant's opportunity to appeal.
The court weighed the respondents' entitlement to the taxed costs against the applicant's right of appeal, but having found the delay unexcused and the appeal not demonstrated to be arguable, it held the interest of justice did not warrant extension and dismissed the motion with costs.
Legal principles established
#- Extension of time under Rule 4 is discretionary, guided by the length of and reason for the delay, possible prejudice, conduct of the parties, the right of appeal, public interest and the arguability of the intended appeal; an applicant must provide evidence supporting the reason advanced for the delay.
- The court does not conclusively determine whether an intended appeal has merits at the extension-of-time stage; the test is whether it is possibly arguable.
Court orders
#- 1.The Notice of Motion dated 18th August 2023 is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Environment and Land Court
- Nairobi ELC No. E294 of 2022
- Jurisdiction invoked
- Section 3A and 3B of the Civil Procedure Act and Rules 4, 41 and 42 of the Court of Appeal Rules, 2022 (single judge, Rule 4 extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimuhu v Ngobi (Administrator in the Estate of Richard Moses Ngobi (Dcd) & another (Civil Application E415 of 2023) [2024] KECA 669 (KLR)", Case Analysis (2024). Notice of Motion dated 18th August 2023 (Nairobi Civil Appeal arising from ELC Case No. E294 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/669/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.