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ELCAllowedNot stated in the judgment text provided· [2020] KEELC 1424 (KLR)

Esther Wanjugu Muraguri v Nelson Mwangi Muraguri [2020] KEELC 1424 (KLR)

Environment and Land Court
6 August 2020
1,760 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court gave a late appellant 45 more days to appeal, finding the delay excusable because no proof of proper notice existed.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Nakuru (M.C. Oundo J) on a Notice of Motion dated 17th July 2019 in which the Applicant sought leave to file a Notice of Appeal out of time against the judgment of L N Waithaka J delivered on 25th February 2019, in a succession-related dispute pending since 1995. The Applicant explained that judgment was not delivered on the originally scheduled date of 11th February 2019, that neither he nor his Counsel received notice of the delivery date, and that he learned of the judgment late. He further noted he had to obtain leave to appoint his present Advocate after judgment, which was only allowed on 11th July 2019, and relied on Section 7 of the Appellate Jurisdiction Act and Eastleigh Matresses Ltd to urge that the court had jurisdiction to extend time and that he need not demonstrate the appeal was arguable. The Respondent opposed, asserting notice of judgment had issued on 20th February 2019 for delivery on 22nd February 2019, and characterising the delay as grossly inordinate, relying on Donald O Raballa v Judicial Service Commission, and warning of prejudice to estate distribution. The court applied the Rule 4 principles from Stanley Kahoro Mwangi v Kanyamwi Trading Co, Mutiso v Mwangi, Mwangi v Kenya Airways and others, holding there was no inordinate delay given that judgment was delivered in the parties' absence with no evidence of service of notice, and that the Respondent had not demonstrated real prejudice. The court extended time by 45 days, directed supply of record documents within 15 days, provided that the window would lapse if the appeal was not filed in time, and ordered the Applicant to bear the costs of the application.

Key legal issues

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01

Whether the delay of about three months in filing the Notice of Appeal was inordinate and sufficiently explained

Holding

The delay was not inordinate because judgment was delivered in the absence of the Applicant and his Counsel, there was no evidence of service of the notice of judgment, and the Applicant had to first obtain leave to appoint his present Advocate, which was only allowed on 11th July 2019.

Reasoning

The court considered the peculiar circumstances: judgment was delivered without the Applicant or his Counsel present; no affidavit of service of the notice of judgment was produced; and the Applicant had to await determination of a separate application of 17th May 2019 for leave to change Advocates, allowed on 11th July 2019. Against these facts, the roughly three-month delay was excusable and the Respondent showed no concrete prejudice beyond asserting delay in distribution of the estate.

p. 2
02

Whether the Respondent would suffer prejudice if extension was granted

Holding

The Respondent failed to demonstrate specific prejudice; the assertion that estate distribution would be delayed was insufficient to displace the discretion.

Reasoning

The Respondent argued the estate distribution would be prejudiced as the matter had been pending since 1995, but offered no demonstration of the actual prejudice she would suffer. The court held that the competing interests must be balanced, and absent demonstrated prejudice, the Applicant's explanation prevailed.

p. 3

Legal principles established

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  • The factors for extension of time under Rule 4 are not exhaustive; the court exercises an unfettered but judicial discretion considering delay, reasons, chances of success and prejudice.
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's discretionary favour.
  • The right of appeal must be balanced against the respondent's right to enjoy the fruits of judgment.

Court orders

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  1. 1.The time within which the Applicant ought to have filed an Appeal to the Court of Appeal is extended by forty-five (45) days from the date of the ruling
  2. 2.If the Applicant has not been supplied with the documents required to prepare the record of Appeal, the Applicant's Counsel to liaise with the Deputy Registrar and ensure they are supplied within fifteen (15) days of the order
  3. 3.If the Applicant does not file the Appeal within the time stipulated, the window granted to file the Appeal shall automatically lapse
  4. 4.The Applicant shall bear the costs of the Application

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Court of Appeal Rules (Cap. 9 sub-leg)Rule 4

Cases cited (9)

  • Eastleigh Matresses Limited vs Stephen Mihango Kariuki & 2 Others
    [2014] eKLR
  • Donald O Raballa vs The Judicial Service Commission & Another
    Nairobi Civil Application No. 10 of 2015 (UR)
  • Stanley Kahoro Mwangi & 2 others v. Kanyamwi Trading Company Limited
    [2015] eKLR
  • Mutiso v Mwangi
    Civil Appln No. Nai 255 of 1997 (UR)
  • Mwangi v Kenya Airways Ltd
    [2003] KLR 486
  • Fakir Mohammed v Joseph Mugambi & 2 Others
    Civil Appln No. Nai 332 of 2004
  • M/S Portreitz Maternity v James Karanga Kabia
    Civil Appeal No. 63 of 1997
  • Monica Malel & Anor v R
    Eldoret Civil Appln No. Nai 246 of 2008
  • Haywood v Cope
    (1858) 25 Beav 140
Jurisdiction invoked
Inherent discretion to extend time; Applicant relied on Section 7 of the Appellate Jurisdiction Act and 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, "Esther Wanjugu Muraguri v Nelson Mwangi Muraguri [2020] KEELC 1424 (KLR)", Case Analysis (2020). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1424/eng@2020-08-06

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