Mutuku Ngei v Julius Makenzi Mwatu (suing as the legal representative and on behalf of the Estate of Mwatu Mutue alias Mwatu Waita Nguyo (deceased) & another [2022] KEELC 816 (KLR)
The bottom line
#The High Court dismissed a request for more time to appeal, confirming that only the Court of Appeal in Kenya can grant such extensions.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the High Court to extend time for filing a Notice of Appeal
The High Court has no jurisdiction to grant leave to file a Notice of Appeal out of time; that power vests in the Court of Appeal under the Appellate Jurisdiction Act
Although the Plaintiff invoked Sections 3, 3A, 7 and 41 of the Appellate Jurisdiction Act, the court read Rule 75 of that Act and associated itself with the cited authorities, concluding that the provisions invoked apply to matters before the Court of Appeal. The 2nd Defendant's objection on jurisdiction therefore prevailed, and the extension-of-time prayer could not be entertained notwithstanding the Plaintiff's explanation about technology failure and lack of notice of judgment delivery.
Whether the Plaintiff received notice of delivery of judgment
The court noted the Plaintiff's counsel's law firm was sent an email concerning the judgment delivery date, contradicting the claim of no notice
On perusal of the impugned notice of delivery of judgment, the court observed that the Plaintiff's counsel's law firm was indeed emailed about the date of delivery. This factual finding undercut the Plaintiff's assertion that the delay was inadvertent, though the disposition rested on jurisdiction rather than this finding.
Legal principles established
#- Only the Court of Appeal has jurisdiction to grant leave to file a Notice of Appeal out of time; the High Court is devoid of such jurisdiction
- In deciding whether to extend time for appealing, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent
Court orders
#- 1.The Plaintiff's Notice of Motion application dated 3rd September, 2020 was dismissed
- 2.Costs to be in the cause
- Jurisdiction invoked
- Sections 3, 3A, 7 & 41 of the Appellate Jurisdiction Act and Article 159(2)(b) of the Constitution (invoked by the Applicant, but found not to confer jurisdiction on the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutuku Ngei v Julius Makenzi Mwatu (suing as the legal representative and on behalf of the Estate of Mwatu Mutue alias Mwatu Waita Nguyo (deceased) & another [2022] KEELC 816 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 3rd September, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/816/eng@2022-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.