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Court of AppealAllowedCivil Application E022 of 2024· [2024] KECA 1891 (KLR)

Njuki v Wandira

Court of Appeal
19 December 2024
1,764 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a late appeal because the litigant reasonably relied on his lawyer to update him on the case outcome.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nyeri on a notice of motion dated 8th January 2024 by Emilio Nyaga Njuki seeking leave to file an appeal out of time against the judgment of the High Court at Embu (Kaniaru, J.) delivered on 9th May 2022 in ELC Appeal No. 16 of 2019, which was decided in favour of Philip Wamwea Wandira. The applicant explained that judgment was delivered in his counsel's absence, that he learned of it months later, that his then counsel appeared disinterested, and that he thereafter obtained a copy of the judgment, sought legal advice, applied for proceedings and drew a draft memorandum of appeal. The respondent opposed, contending the application was filed nearly two years after judgment and some six months after receipt of the judgment, showing the applicant had slept on his rights, and that the claim of an arguable appeal was speculative. The court framed a single issue: whether time should be extended. Applying Rule 4 of the Court of Appeal Rules and the considerations in Muringa Company Ltd and Imperial Bank Ltd, Ali-Aroni, JA held that a litigant may properly rely on counsel to advise of the outcome, that the delay was satisfactorily explained and not inordinate, and that the applicant should not be kept away from the seat of justice. Leave to appeal out of time was granted, with the notice of appeal to be lodged within 14 days and served within 7 days thereof. No costs order was made. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

Whether the delay in filing the appeal was inordinate and satisfactorily explained

Holding

The delay was not inordinate; the applicant satisfactorily explained it, having relied on a disinterested counsel and having taken steps once he learned of the judgment.

Reasoning

The applicant learned of the judgment months after delivery, approached his counsel who appeared disinterested, then obtained a copy of the judgment, sought legal advice, applied for proceedings and attached a draft memorandum of appeal. The court held a litigant may rely on counsel and should not be kept away from the seat of justice where the delay is explained.

p. 3
02

Whether the intended appeal is arguable

Holding

The court was satisfied the application had sufficient merit to warrant leave, without definitively determining the merits of the intended appeal.

Reasoning

Relying on Imperial Bank, the single judge noted it is not the role of the single judge to determine definitively the merits of the intended appeal; that is for the full court. The applicant asserted arguability and the court found the delay explained and leave warranted.

p. 3

Legal principles established

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  • Rule 4 discretion must be exercised judicially, considering delay length, reasons, prejudice, party conduct, balancing the judgment-holder's interests against the right of appeal, and prima facie chances of success.
  • A litigant who relies on counsel to advise of the outcome of the case cannot be faulted for waiting on counsel to act.

Court orders

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  1. 1.Leave granted for the appeal to be filed out of time
  2. 2.The notice of appeal be lodged within the next 14 days and served 7 days thereof

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3A and 3B
  • Civil Procedure Actsection 1A and 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Court of Appeal RulesRule 4
  • Civil Procedure Rulesrelied on by respondent's counsel

Cases cited (3)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR

    Principles a court should consider when exercising discretion to extend time

  • Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees
    Civil Application No 190 of 2019

    Non-exhaustive considerations in extension of time applications

  • Imperial Bank Ltd (under receivership) v Alnashir Poppat & 18 others
    [2018] eKLR

    Extension of time considerations; single judge should not definitively determine merits

On appeal from
High Court at Embu
ELC Appeal No. 16 of 2019
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; sections 1A and 1B of the Civil Procedure Act; Article 159(2)(d) of the Constitution; Rule 4 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, "Njuki v Wandira", Case Analysis (2024). Civil Application E022 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1891/eng@2024-12-19

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