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Court of AppealAllowedNot stated in the judgment· [2024] KECA 1623 (KLR)

Murangi v Mwangi (Civil Application E095 of 2024) [2024] KECA 1623 (KLR)

Court of Appeal of Kenya
7 November 2024
ALAli-Aroni
1,868 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed an appeal filed late because the litigant couldn't get a copy of the judgment in time.

What this practically means

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Executive summary

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This is a single-judge decision of the Court of Appeal at Nyeri (Ali-Aroni, JA) on a notice of motion dated 1st October 2024 brought under Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 41 and 42 of the Court of Appeal Rules, seeking leave to appeal out of time against a High Court decision delivered on 23rd May 2024 in a matter arising from Embu CMCC No. 94 of 2019. The applicant explained that judgment was first delivered in open court on 8th May 2024 and then re-delivered, substantially different, on 23rd May 2024, and that despite her efforts a copy of the second judgment was only availed in September 2024. The respondent opposed, contending that the delay of over six months was inordinate and unexplained, that no notice of appeal was filed within 14 days, and that the intended appeal lacked arguable grounds. The court applied the settled Rule 4 factors: the length of and reason for the delay, the chances of the appeal succeeding, and prejudice to the respondent. It found the explanation satisfactory because two judgments were delivered in the same matter - a fact not controverted by the respondent - and because obtaining a copy of the judgment was necessary before deciding whether to appeal. Concluding that the delay was not inordinate and the intended grounds were not frivolous, the court allowed the application, directing that the notice of appeal be dealt with within 7 days and the record of appeal be filed within 60 days. No costs order was made.

Key legal issues

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01

Whether the applicant explained the delay in filing the notice of appeal and memorandum of appeal sufficiently to warrant extension of time under Rule 4

Holding

Yes. The delivery of two different judgments and the unavailability of a copy of the second judgment until September 2024 satisfactorily explained the delay, which was not inordinate, and the intended grounds were not frivolous.

Reasoning

Rule 4 confers an unfettered discretion to extend time, guided by the length of and reason for the delay, arguability of the appeal, and prejudice to the respondent. The court found that two judgments were delivered in the same matter on 8th and 23rd May 2024, and that the second judgment was only availed in September 2024. These facts were not controverted by the respondent. Obtaining a copy of the judgment is necessary to decide whether to appeal. The delay was therefore satisfactorily explained and not inordinate.

p. 4

Legal principles established

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  • The decision whether or not to extend time is discretionary, taking into account the length of and reason for the delay, chances of the appeal succeeding, and prejudice to the respondent.

Court orders

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  1. 1.The application is allowed
  2. 2.The notice of appeal be filed within the next 7 days
  3. 3.The record of appeal be filed within the next 60 days of the date of the ruling

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A, 3B
  • Court of Appeal RulesRules 4, 41, 42

Cases cited (9)

  • Paul Wanjohi Mathenge v Duncan Gichane Mathenge
    [2013] eKLR
  • Njoroge v Kimani
    [2022] KECA 1188 [KLR]
  • Sokoro Savings and Credit Co-operative Society Limited v Mwamburi
    [2023] KECA 381 (KLR)
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Paul Musili Wambua v Attorney General & 2 Others
    [2015] eKLR
  • Bartilol & 3 Others v Bartilol & Another
    [2024] eKLR
  • Dominic Okodoi v Republic
    [2021] eKLR
  • Leo Sila Mutiso v Helen Wangari Mwangi
    [1999] 2 EA
  • Fakir Mohammed v Joseph Mugambi and 2 Others
    [2005] eKLR
On appeal from
High Court
Arising from Embu CMCC No. 94 of 2019
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 41 and 42 of the Court of Appeal Rules

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, "Murangi v Mwangi (Civil Application E095 of 2024) [2024] KECA 1623 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1623/eng@2024-11-07

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