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Court of AppealDismissedNotice of Motion dated 7th November 2023 (rule 83, Court of Appeal Rules)· [2024] KECA 969 (KLR)

Moses Njoroge Kaburi & 2 others v Lucy Wangui Njuguna & 2 others

Court of Appeal of Kenya
2 August 2024
1,920 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to kill a delayed appeal because the High Court registry, not the litigants, caused the two-year delay.

What this practically means

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Executive summary

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The applicant, Lucy Wangui Njuguna, who had purchased the suit property, Naivasha/Mwichiringiri Block 1/32, at a public auction by the chargee, moved the Court of Appeal under rule 83 seeking to have the respondents' notice of appeal marked as withdrawn, the appeal (if any) dismissed for want of prosecution, and the stay of execution orders the Court had earlier granted over the suit property lifted. The respondents, the legal personal representatives of the estate of the deceased registered proprietor, conceded the delay of over two years in filing the appeal following the High Court's ruling of 28th April 2020 that the suit had abated, but attributed it to the High Court registry's failure to supply certified copies of the rulings, orders and proceedings despite repeated written requests, including three unanswered reminders in 2023. Applying its own decision in Rodgers Abisai, the Court held that the duty to prepare and supply certified documents rests with the Deputy Registrar and the registry, and that it would be unfair to punish the litigants for the registry's inefficiency. Although the delay was inordinate, it was excusable. The Court dismissed the application but, to avoid further delay, directed the High Court to supply the certified documents within 30 days, and gave the personal representatives 21 days thereafter to file and serve the record of appeal. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether inordinate delay in filing an appeal is excusable where attributable to registry inefficiencies

Holding

Yes - where the litigant has demonstrated efforts to obtain the necessary documents and the registry has failed to act, the delay should not be visited upon the litigant.

Reasoning

The Court accepted that over two years elapsed without the appeal being filed. However, the personal representatives' advocate wrote repeatedly to the Deputy Registrar requesting certified copies of the rulings, orders and proceedings, with three reminders in 2023 that went unanswered. The Court held the duty to prepare and supply the documents lies with the Deputy Registrar and the registry, so punishing the litigants would be unfair. Following its own precedent in Rodgers Abisai, the Court excused the delay and instead directed the High Court to supply the documents within 30 days and gave the parties 21 days thereafter to file the record of appeal.

p. 4

Legal principles established

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  • Where a party has diligently requested certified copies of proceedings from the High Court registry and the registry has failed to supply them, that party cannot be condemned for failing to lodge the record of appeal within time; the duty to prepare and supply the documents lies with the Deputy Registrar and the registry.

Court orders

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  1. 1.Dismissal of the notice of motion dated 7th November 2023
  2. 2.Direction to the High Court to supply certified copies of the ruling dated 26th October 2020, the proceedings and a certified copy of the order dated 28th April 2020 within 30 days
  3. 3.Direction that the personal representatives shall have 21 days from receipt of the documents to file and serve their record of appeal
On appeal from
High Court
Milimani HCCC No. 245 of 2010
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules (inherent application jurisdiction of the Court)

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, "Moses Njoroge Kaburi & 2 others v Lucy Wangui Njuguna & 2 others", Case Analysis (2024). Notice of Motion dated 7th November 2023 (rule 83, Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/969/eng@2024-08-02

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