Ngari & 2 others v David (Civil Application E074 of 2024) [2024] KECA 1349 (KLR)
The bottom line
#Kenya's Court of Appeal gave a family two extra weeks' grace to file an appeal, showing courts will forgive short, honestly explained delays.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of about two weeks in lodging the notice of appeal was inordinate and satisfactorily explained
The delay was not inordinate; the reason offered for the delay was accepted.
Judgment was delivered on 24th July 2024 and the notice of appeal was dated 7th August 2024, roughly two weeks later. The High Court judgment did not indicate whether parties were represented at delivery, and counsel deponed that it was delivered in his absence and was only accessed on 6th August 2024. The court found this explanation acceptable and held there was no inordinate delay.
Whether the intended appeal had chances of success and whether the respondent would be prejudiced
The court could not assess the chances of success because no draft memorandum of appeal was annexed, and there was no material showing prejudice to the respondent, who did not respond.
The applicants did not annex a draft Memorandum of Appeal, leaving the court unable to weigh the merits of the intended appeal. The respondent was served with the application and hearing notice but filed neither submissions nor a replying affidavit, leaving no material on which to assess prejudice. The court nonetheless found the applicants entitled to the extension.
Legal principles established
#- Whether or not to extend time for appealing is discretionary, and the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
Court orders
#- 1.Extension of time granted to the applicants to lodge an appeal
- 2.Notice of appeal to be lodged within seven (7) days
- 3.Record of appeal to be lodged within thirty (30) days thereafter
- 4.Costs of the Motion to be in the appeal
- On appeal from
- High Court of Kenya at Embu
- HCCA 21 of 2024 (consolidated with HCCA 22 of 2024 and HCCA 24 of 2024)
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngari & 2 others v David (Civil Application E074 of 2024) [2024] KECA 1349 (KLR)", Case Analysis (2024). Not stated in the judgment (Motion arising from Embu HCCA 21 of 2024 consolidated with HCCA 22 of 2024 and HCCA 24 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1349/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.