[2019] KECA 551 (KLR)
The court found that the applicants failed to provide sufficient and plausible reasons for the delay in filing the notice of appeal and record of appeal. The explanations given—lack of communication from their advocate, ignorance of the law, and financial constraints—were deemed inadequate and unmeritorious. The...
Source-derived case information.
- Citation
- [2019] KECA 551 (KLR)
- Parties
- Applicant: Christopher Wanjohi Njuguna; Applicant: Mbacha Njuguna; Applicant: Mwangi Njuguna; Applicant: Danson Irungu Njuguna; Respondent: Irungu Njuguna; Respondent: Jane Muthoni Mwariri
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 107 of 2018
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Succession Proceedings, Delay in Filing, Appeal Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Wanjohi Njuguna
Applicant
Mbacha Njuguna
Applicant
Mwangi Njuguna
Applicant
Danson Irungu Njuguna
Applicant
Irungu Njuguna
Respondent
Jane Muthoni Mwariri
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause for extension of time to file a notice of appeal and record of appeal out of time.
- 2 Whether the reasons advanced for the delay are plausible and justified under Rule 4 of the Court of Appeal Rules.
- 3 Whether granting the extension would prejudice the respondents or undermine the finality of litigation.
Ratio Decidendi
The court found that the applicants failed to provide sufficient and plausible reasons for the delay in filing the notice of appeal and record of appeal. The explanations given—lack of communication from their advocate, ignorance of the law, and financial constraints—were deemed inadequate and unmeritorious. The court emphasized that the delay was substantial, spanning approximately two years, and that further delay would prejudice the respondents and undermine the finality of litigation. Applying the principles from Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court concluded that the applicants did not meet the threshold for the exercise of discretion under Rule 4 of the Court of...
Court Disposition
application dismissed
Orders
- The application for extension of time to file a notice of appeal and record of appeal is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OUKO, (P), ( IN CHAMBERS )
CIVIL APPLICATION NO. 107 OF 2018
BETWEEN
CHRISTOPHER WANJOHI NJUGUNA...1STAPPLICANT
MBACHA NJUGUNA.................................2NDAPPLICANT
MWANGI NJUGUNA.................................3RDAPPLICANT
DANSON IRUNGU NJUGUNA.................4THAPPLICANT
AND
IRUNGU NJUGUNA..............................1STRESPONDENT
JANE MUTHONI MWARIRI.................2NDRESPNDENT
(Being an application to seek leave to file a Notice of Appeal out of time in an intendedappeal
againsttheJudgment and Decree of the High Court of Kenya at Nairobi (M.W.Muigai, J)
dated 16thJune, 2017 In Succession Cause No. 2412 Of 2005
*******************
RULING
The case of Leo Sila Mutiso V Rose Hellen Wangari Mwangi, (CivilApplication No. Nai. 255 of 1997 has laid down the yardstick for the exercise of discretionary powers by a single judge considering an application for extension of time under Rule 4 of the Court of Appeal Rules. It has established that the decision whether or not to extend the time for filing a notice of appeal orlodging the appeal itself will depend on the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted and the degree of prejudice to the respondent if the application is granted.
The applicants in the present application pray that time for filing both the notice of appeal and the record of appeal to challenge the decision of the High Court in H.C Succession Cause No. 2412 of 2005 be extended. The decision in question was rendered on 16th June, 2017 by Muigai, J., who revoked the earlier grant of representation and in it’s place issued a fresh one in the name of the surviving widow and two others representing the second and the third houses.
The applicants wish to challenge that decision but are unable because the time to do so has lapsed. They have explained that their erstwhile advocate did not communicate to them the outcome of the application for revocation; that being lay persons they did not know they required to file a notice of appeal; and that they lacked the finances to engage another advocate immediately.
The respondents have opposed the application arguing that the application is an afterthought; that the reasons advanced for the delay are not plausible; and that the intended appeal will not be arguable.
The delay involved is about nine (9) months between 16th June, 2017 and 29th March, 2018. Today it is two (2) years. The cause itself was filed in 2005, a good fourteen (14) years today. In determining the length of delay, the reason or reasons for the delay and the other parameters set by Leo Sila Mutiso case (supra) the Court will balance between the concepts of access to justice and finality of litigation.
Blaming the advocate and ignorance of the law as the applicant have in this day and age is lame. The applicants’ two main reasons for not filing the notice of appeal and the appeal within the time prescribed by the rules are without merit. Without being definitive, the decision of the learned judge appears plausible in the circumstances. Further delay will be prejudicial to the respondents. For these reasons the application is dismissed with no orders as to costs.
Dated and delivered at Nairobi this 5thday of July, 2019.
W. OUKO, (P)
....................................
JUDGE OF APPEAL
I certify that this is a True copy of the original
DEPUTY REGISTRAR