[1998] KECA 81 (KLR)
The Court of Appeal held that the applicant's unchallenged explanation for delay—poverty and the need to raise funds for court and advocates fees—was not properly considered by the single judge. The court emphasized that the discretion to extend time under Rule 4 is unfettered and should be exercised with regard to...
Source-derived case information.
- Citation
- [1998] KECA 81 (KLR)
- Parties
- Applicant: Muchugi Kiragu; Respondent: James Muchugi Kiragu; Respondent: Henry Thariki Ng'ang'a
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 356 of 1996
- Procedural Posture
- Extension of Time Application / Reference From Single Judge Refusal to Extend Time
- Outcome
- Reference allowed; extension of time granted.
- Legal Topics
- Extension of Time, Appeals Process, Court Discretion, Pauper Litigants
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muchugi Kiragu
Applicant
James Muchugi Kiragu
Respondent
Henry Thariki Ng'ang'a
Respondent
Procedural Posture
Extension of Time Application / Reference From Single Judge Refusal to Extend Time
Legal Issues
- 1 Whether the applicant provided sufficient cause for delay in filing the application for extension of time to appeal.
- 2 Whether poverty and inability to raise court and advocates fees constitute good reason for delay under Rule 4 of the Court of Appeal Rules.
- 3 Whether the single judge properly exercised discretion in refusing to extend time.
Ratio Decidendi
The Court of Appeal held that the applicant's unchallenged explanation for delay—poverty and the need to raise funds for court and advocates fees—was not properly considered by the single judge. The court emphasized that the discretion to extend time under Rule 4 is unfettered and should be exercised with regard to the circumstances, including whether the intended appeal is arguable and whether the delay is excusable. Since the applicant's reason for delay was not rebutted and the delay was not found to be inordinate or prejudicial to the respondents, the court found it just to grant the extension. The court concluded that the single judge erred in failing to consider the applicant's...
Court Disposition
Reference allowed; extension of time granted.
Orders
- The applicant is granted an extension of 30 days from the date of the ruling within which to lodge his record of appeal.
- Costs of the application and the reference shall be costs in the intended appeal.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, AKIWUMI & SHAH, JJ.A.)
CIVIL APPLICATION NO. NAI. 356 OF 1996
BETWEEN
MUCHUGI KIRAGU ..................................... APPLICANT
AND
1. JAMES MUCHUGI KIRAGU
2. HENRY THARIKI NG'ANG'A ...........................RESPONDENTS
(Application for extension of time to appeal out of time in an intended Appeal from a Judgment of the High Court of Kenya at Nairobi (Lady Justice Walekhwa) dated 13th May, 1992
in
H.C.C.C. NO. 632 OF 1980) ********** RULING OF THE COURT
The reference before us is in respect of the refusal of Kwach, J.A. sitting as a single judge of this court, to extend for the applicant, time within which to appeal against the judgment of Walekhwa, J. given on 13th May, 1992. The uncontroverted facts are that the applicant timeously filed his Notice of Appeal on 20th May, 1992, that is on the seventh day after the delivery of the judgment. But before then, his advocate had on 18th May, 1992, and within time, applied, to the Deputy Registrar of the High Court, and sending a copy of this application to the respondents' advocates, for copies of the proceedings and judgment in the matter before the superior court, for the purpose of lodging an appeal in this Court. The Certificate of Delay showed that the proceedings and judgment were delivered to the applicant on 5th August, 1996. From that day, the applicant had sixty days within which to lodge his appeal. This he failed to do because the Certificate of Delay itself, which would only be necessary to support an application for extension of time within which to lodge the appeal, was not ready for collection until 7th October, 1996, two days after the expiry of the sixty days. It was, however, not until 18th November, 1996, that the applicant filed his application for extension of time to lodge his appeal, some forty four days after the proceedings and judgment were delivered to the applicant, which constitute the period of delay involved. The real reason for this delay as deponed in the applicant's affidavit in support of his application is:
"That the application to appeal out of time could not be filed early as the applicant is a pauper and the delay has not yet been inordinate. He took a month to raise the court fees for filing the application and Advocates fees for it.".
It is also noteworthy that his application was brought on the grounds that the intended appeal had overwhelming chances of success and that the applicant would suffer greatly if his application was not granted. Annexed to the applicant's supporting affidavit were copies of the pleadings and judgment in the superior court together with the grounds of his intended appeal.
The application was opposed on the ground that the time taken from 7th October, 1996, when the Certificate of Delay was obtained, to 18th November, 1996, when the application was filed, was inordinately long. The applicant's averment in his affidavit that his poverty had been the cause of the delay in bringing the application was, however, not challenged.
As regards the poverty of the applicant, which the learned single judge properly identified as the applicant's only stated reason for the delay in filing his application, the learned single judge dealt with it rather peremptorily when he stated in his ruling that it was not good enough because the applicant could have sought refuge under the Rules of this Court with respect to poor litigants. The crucial averment of the applicant that he needed a month to raise the necessary funds for court and advocates fees, which was not denied, was not considered by the single judge of this Court.
Lastly, we would like to observe that the discretion granted under Rule 4 of the Rules of this Court to extend the time for lodging an appeal, is, as is well known, unfettered and is only subject to it being granted on terms as the Court may think just. Within this context, this Court has on several occasions, granted extension of time, on the basis that an intended appeal is an arguable one and that it would therefore, be wrong to shut an applicant out of Court and deny him the right of appeal unless it can fairly be said that his action was in the circumstances, inexcusable and that his opponent was prejudiced by it. If the learned single judge had considered this issue which was raised in the applicant's application, and in his supporting affidavit including the annextures thereto, we venture to say that he may probably have come to a different conclusion than the one he came to.
In the result we are constrained to come to the conclusion that the applicant's reference must succeed and hereby grant to him an extension of 30 days from today within which to lodge his record of appeal. The costs of the application and this reference shall be costs in the intended appeal.
Dated and delivered at Nairobi this 6th day of February, 1998.
J. E. GICHERU .................
JUDGE OF APPEAL
A. M. AKIWUMI .................
JUDGE OF APPEAL
A. B. SHAH .................
JUDGE OF APPEAL
I certify that this is a true copy of the origina
DEPUTY REGISTRAR.