MWANIKI GAKUYA & ANOTHER vs PRISCILLA WANJIKU GAKUYA [2002] KECA 111 (KLR)
The bottom line
#Kenya's Court of Appeal excused a three-month delay in filing an appeal because the litigants had no lawyer and needed time to find one.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the delay between the delivery of the High Court judgment on 4th September 2001 and the lodgment of the application on 13th December 2001 was so inordinate as to shut the applicants out from appealing.
- 2.Whether the applicants should be granted an extension of time to lodge the notice of appeal and the record of appeal, and on what terms.
Key legal issues
#Whether the delay of approximately three months in lodging the application for extension of time was inordinate.
The delay was not inordinate because the two applicants were unrepresented at the material time and had to look for advocates to lodge the application; they should not be shut out from appealing.
The court weighed the length of the delay, running from the High Court judgment of 4th September 2001 to the lodgment of the application on 13th December 2001, against the applicants' personal circumstances. It found that the applicants were not then represented and needed time to engage advocates before lodging the application. On that basis the court concluded the delay was not so inordinate as to justify excluding them, and exercised its discretion in their favour.
On what terms the extension of time should be granted.
The application was allowed: the notice of appeal was to be lodged within seven days and the record of appeal within 30 days of the lodgment of the notice of appeal, with the costs of the application awarded to the respondent at Shs. 3,000/=.
Having found the delay excusable, the court granted the extension but conditioned it on strict timelines: seven days for the notice of appeal and thirty days for the record of appeal, computed from the lodgment of the notice. It also compensated the respondent for the application by awarding assessed costs of Shs. 3,000/=, payable within thirty days, with execution to issue on default.
Legal principles established
#- In assessing whether a delay in lodging an appeal is inordinate, a court may take into account that the applicant was unrepresented at the material time and needed time to obtain advocates; such a delay will not necessarily justify shutting the applicant out from appealing.
Court orders
#- 1.The notice of appeal to be lodged within the next seven days.
- 2.The record of appeal to be lodged within 30 days of the lodgment of the notice of appeal.
- 3.The respondent to have the costs of the application, assessed at Shs. 3,000/=, to be paid within the next 30 days, failing which execution may issue.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Jurisdiction invoked
- Not stated in the judgment. The application is one for extension of time to lodge a notice of appeal and record of appeal out of time following a High Court decision, but the judgment cites no constitutional or statutory provision conferring jurisdiction.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I allow this application and order that the notice of appeal be lodged within the next seven days and the record of appel be lodged within 30 days of the lodgment of the notice of appeal.
The respondent will have costs of this application which I assess at Shs. 3,000/=.
Considering the fact that the two applicants were not then represented and that they had to look for advocates to lodge this application, the delay is not so inordinate as to enable me shut out the applicants from appealing.
Issues in the judgment
#The judgment does not state the names of the parties, the case number, or the lower-court case details, so the matter cannot be fully identified from the text alone.
The judgment contains typographical errors: 'record of appel' (for 'appeal') in the operative order and 'must be find' (apparently for 'must be paid') in the costs order.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MWANIKI GAKUYA & ANOTHER vs PRISCILLA WANJIKU GAKUYA [2002] KECA 111 (KLR)", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/111/eng@2002-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.