Bararagu v Principal Secretary, Ministry of Agriculture Research, Livestock, Crop Development and Fisheries & another (Civil Application E215 of 2024) [2024] KECA 1593 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an extension-of-time application because the applicant offered no evidence explaining the delay, no draft appeal, and no proof of prejudice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted leave to file and serve the Memorandum of Appeal and Record of Appeal out of time against the ruling delivered on 6th October 2023
- 2.Whether the applicant demonstrated plausible reasons for the delay in filing the record of appeal
- 3.Whether the appeal has chances of success and whether the respondents would suffer prejudice if extension is granted
Key legal issues
#Extension of time under Rule 4 of the Court of Appeal Rules
The applicant failed to establish the Rule 4 principles; the reasons for the delay were unsupported general averments and the motion was dismissed
The Court has wide but judicious discretion under Rule 4. Although the Notice of Appeal was filed within time, the applicant's explanation for the roughly seven-month delay - an alleged registry undertaking to notify them when proceedings were ready - was a general averment with no evidential support; the registry official was unnamed, no proof of application or follow-up for proceedings existed, and no formal application for typed proceedings under Rule 84 was shown. No draft Memorandum of Appeal was annexed to gauge the appeal's chances, and no prejudice from refusal was shown.
Evidential support for reasons for delay
General and unsubstantiated averments that the registry undertook to notify the applicant when proceedings were ready did not constitute plausible reasons for the delay
The Court found nothing on the record to support the alleged assurance/undertaking; the registry official who allegedly gave it was not named, and there was no evidence that the applicant applied for the proceedings or followed up. The claim that a Certificate of Delay was requested and declined was likewise unsupported. Further, the applicant did not formally apply for typed proceedings with a copy to the respondent's counsel as Rule 84 requires.
Chances of success and prejudice
The applicant did not annex a draft Memorandum of Appeal, so the Court could not assess the appeal's merits, and no prejudice from refusal was demonstrated
On the third Rule 4 factor, the absence of a draft Memorandum of Appeal meant the Court could not interrogate whether the intended appeal was arguable, so nothing more was said on that issue. On prejudice, no evidence was tendered to show the applicant would suffer any prejudice if the motion was not allowed. Both factors weighed against the exercise of discretion in the applicant's favour.
Legal principles established
#- In deciding an application to extend time under Rule 4, 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, exercising its discretion judiciously
Court orders
#- 1.The applicant's motion dated 6th May 2024 is dismissed in its entirety
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (Nairobi Judicial Review Court)
- Misc Application No. 511 of 2015
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 4, 86 and 87 of the Court of Appeal Rules 2010; Article 159(2)(a)(d) of the Constitution
Relief refused
#Leave to file and serve the Memorandum of Appeal and Record of Appeal out of time
The applicant failed to demonstrate plausible reasons for the delay, did not annex a draft Memorandum of Appeal, and did not show prejudice; the principles for extension of time under Rule 4 were not satisfied
Costs
No order as to costs - since the respondents did not respond to the motion, each side to bear its own costs ("I will make no order as to costs.")
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Given the circumstances, I find that the applicant has not demonstrated and satisfied the existence of the principles for consideration in the exercise of my unfettered discretion pursuant to Rule 4 of this Court to extend time within which to file the intended appeal.
It is now well settled that the decision whether or not to extend time for appealing is essentially discretionary. It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are; first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.
In view of the above, the inevitable conclusion that I arrive at is that the applicant’s motion dated 6th May 2024, must sufier one fate which is dismissal and I accordingly dismiss the same in its entirety.
Since the respondents have not made any response to the motion, I will make no order as to costs.
Issues in the judgment
#The applicant's affidavit dates are internally inconsistent: the deponent states the Notice of Appeal was filed 16th October 2023 but then says 'on the same day (i.e. on 18th October 2023), when they were collecting the ruling', conflating 16th and 18th October 2023
The presiding judge's name is printed as 'F. SICHALE' in the signature block, which may be a typographical error for 'SICHALE'/'SICHALE' rendering; recorded as printed
The application is described as against the respondents and service was effected, but the respondents are not named anywhere in the judgment, so the full party names cannot be recorded
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bararagu v Principal Secretary, Ministry of Agriculture Research, Livestock, Crop Development and Fisheries & another (Civil Application E215 of 2024) [2024] KECA 1593 (KLR)", Case Analysis (2024). Miscellaneous Application (extension of time under Rule 4) dated 6th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1593/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.