Ngugi Njurumbe v Dinah Wairimu Njogu [2018] KEELC 1944 (KLR)
The bottom line
#The High Court refused to revive an 8-year-old appeal because the litigant never explained the delay, and costs went to the respondent.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant explained the delay in filing the appeal out of time
The Court found that the Appellant failed to explain the delay of about 8 years from delivery of the ruling on 11/9/2009, and that no certificate of delay was exhibited to attribute the delay to the registry.
The Appellant attributed the delay to late supply of typed proceedings, having applied for them on 3/4/2017 and received them in August 2017. However, the ruling was delivered on 11/9/2009 and an appeal ought to have been filed by 26/9/2009. No certificate of delay was attached, and the Court held that dissatisfaction with the ruling was not a reason for the delay.
The applicable principles for granting leave to appeal out of time
The Court applied the settled Court of Appeal principles: the discretion is unfettered and requires consideration of the period and reason for delay, chances of success, prejudice to the Respondent, and other relevant factors.
Relying on Stanley Kahoro Mwangi, Mwangi v Kenya Airways and Fakir Mohammed, the Court noted the discretion is unfettered and the Applicant must satisfy the Court it deserves to be exercised in his favour, balancing the right of appeal against the Respondent's right to enjoy the fruits of judgment.
Discrepancy as to which ruling is impugned
The Notice of Motion referred to the ruling of 11/9/2009 while the draft Memorandum referred to a ruling of 11/4/16; the Court adopted the 11/9/2009 ruling and noted no explanation for the confusion.
The Court observed the inconsistency between the documents and proceeded on the ruling of 11/9/2009, treating the unexplained confusion as undermining the application.
Legal principles established
#- A plausible and satisfactory explanation for delay is the key that unlocks the Court's discretionary favour in an extension-of-time application.
Court orders
#- 1.The Notice of Motion dated 1/9/2017 seeking leave to file an appeal out of time is dismissed
- 2.Costs of the application awarded to the Respondent
- On appeal from
- Kigumo Law Courts (Resident Magistrate's Court)
- Civil Case Number 143 of 2008
- Jurisdiction invoked
- Order 43(1), (3) of the Civil Procedure Rules and sections 75 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngugi Njurumbe v Dinah Wairimu Njogu [2018] KEELC 1944 (KLR)", Case Analysis (2018). Civil Case Number 143 of 2008 (appeal from Kigumo; ruling sought to be appealed delivered 11/9/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1944/eng@2018-09-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.