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ELCDismissedCivil Case Number 143 of 2008 (appeal from Kigumo; ruling sought to be appealed delivered 11/9/2009)· [2018] KEELC 1944 (KLR)

Ngugi Njurumbe v Dinah Wairimu Njogu [2018] KEELC 1944 (KLR)

High Court of Kenya
13 September 2018
1,422 words in judgment
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The bottom line

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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

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Executive summary

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The Appellant, Ngugi Njurumbe, moved the High Court at Murang'a by Notice of Motion dated 1/9/2017 under Order 43(1) and (3) of the Civil Procedure Rules and sections 75 and 3A of the Civil Procedure Act, seeking leave to appeal out of time against the ruling of Hon A. Ogonda, Resident Magistrate, Kigumo, in Civil Case Number 143 of 2008 delivered on 11/9/2009. He attributed the delay to the late supply of typed proceedings, which he requested by letter dated 3/4/2017 and received in August 2017. The Respondent opposed the application through grounds of opposition dated 9/3/2018, contending that the delay of about 8 years was unexplained, that the Appellant had previously filed and lost an appeal (HCCA No. 107 of 2009, struck out in Nyeri), and that he had come to court with dirty hands. The application was argued orally on 22/5/2018. Kemei, J. set out the settled Court of Appeal principles on extension of time, including that the discretion is unfettered and requires a satisfactory explanation for the delay, balancing the right of appeal against the respondent's right to enjoy the fruits of judgment. The Court found that the Appellant ought to have filed the appeal by 26/9/2009, produced no certificate of delay, and had not explained the 8-year delay. The Court also noted an unexplained discrepancy between the ruling of 11/9/09 cited in the Notice of Motion and the ruling of 11/4/16 referenced in the draft Memorandum, adopting the former. The Court made no finding on the earlier struck-out Nyeri appeal. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Appellant explained the delay in filing the appeal out of time

Holding

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.

Reasoning

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.

p. 2
02

The applicable principles for granting leave to appeal out of time

Holding

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.

Reasoning

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.

p. 2
03

Discrepancy as to which ruling is impugned

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 1/9/2017 seeking leave to file an appeal out of time is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 43(1), (3)
  • Civil Procedure Actsection 75
  • Civil Procedure Actsection 3A

Cases cited (5)

  • Stanley Kahoro Mwangi & 2 Others vs. Kanyamwi Trading Company Limited
    (2015) eKLR
  • Mwangi vs. Kenya Airways Ltd
    {2003} KLR 486
  • Fakir Mohammed vs. Joseph Mugambi & 2 others
    Civil Application No. Nbi 332 of 2004 (unreported)
  • M/s Portreitz Maternity v James Karanga Kabia
    Civil Appeal No. 63 of 1997
  • Monica Malel & Anor V R et al
    Eldoret Civil Appl. No. Nai 246 of 2008
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

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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, "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.