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Court of AppealAllowedCivil Appli. Nai 71 of 2007

FRANCIS MBURU NJOROGE v PETER KABIBI KINYANJUI & another [2007] KECA 45 (KLR)

Court of Appeal of Kenya
27 July 2007
401 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a single judge can grant fresh time to refile an appeal after the original appeal record is struck out, especially when no one objects.

What this practically means

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Executive summary

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This is a single-Judge ruling of the Court of Appeal at Nairobi by W. S. Deverell, JA, delivered on 27 July 2007 in an application under rule 4(1) of the Court of Appeal Rules by Francis Mburu Njoroge, the applicant and intended appellant against Peter Kabibi Kinyanjui and Africa Media Limited. The applicant sought an extension of time within which to lodge and serve a fresh Notice of Appeal and Record of Appeal against the judgment of Osiemo J of the High Court at Nairobi delivered on 27 June 2000 in H.C.C.C. No. 2643 of 1986. The original Notice of Appeal was lodged in time, but the Record of Appeal was not; the original record was struck out on 13 March 2007 and the present motion was filed on 3 April 2007. Counsel for the applicant sought a 21-day extension and relied on the unreported decision in Alfred Ramaris and others v. Association of Members Episcopal Conference in Eastern Africa (Civil Application No. Nai. 375 of 2002). Mr. Kamunda for the respondents did not oppose. The court held that under rule 4(1) a single Judge has an unfettered discretion to extend time for filing a fresh Notice of Appeal and Record of Appeal following the striking out of the original record. Noting the respondents' non-opposition and the modest extension sought, the Judge exercised the discretion in the applicant's favour, ordering that the Notice of Appeal be lodged and served within seven days of the ruling and the Record of Appeal within fourteen days of the lodging of the Notice, with costs of the application in the intended appeal. The orders actually made therefore differ in timetable from the 21-day period counsel had sought.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the single Judge should extend the time for the applicant to lodge and serve a fresh Notice of Appeal and Record of Appeal following the striking out of the original Record of Appeal on 13th March 2007.
  2. 2.Whether, given that the respondents did not oppose the application and the extension sought was 21 days, the discretion under rule 4(1) should be exercised in the applicant's favour.

Key legal issues

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01

Scope of the single Judge's discretion under rule 4(1) to extend time for lodging a fresh Notice of Appeal and Record of Appeal after the original Record of Appeal has been struck out.

Holding

The discretion is unfettered and was exercised in the applicant's favour where the application was unopposed and the extension sought was modest.

Reasoning

The court treated rule 4(1) as conferring on a single Judge an unfettered discretion to extend time for filing a fresh Notice of Appeal and Record of Appeal once the original record has been struck out. The ruling presupposes that the original Notice of Appeal was lodged in time and that the default related only to the Record of Appeal. Because the respondents, through their advocate, did not oppose, and the extension sought was limited to 21 days, the Judge concluded that the discretion should be exercised in the applicant's favour and set fresh timelines for both documents.

p. 2
02

Whether the extension should be granted on the facts, the application being unopposed and the extension sought being 21 days.

Holding

Granted - the Notice of Appeal within seven days of the ruling, and the Record of Appeal within fourteen days of the lodging of the Notice.

Reasoning

Applying the unfettered rule 4(1) discretion to the facts, the Judge noted the respondents' non-opposition and the modest length of the extension sought, and exercised the discretion in the applicant's favour. Rather than validate the 21-day period computed from the striking out of the original record on 13th March 2007, the court set a prospective timetable: seven days from 27th July 2007 for lodging and serving the Notice of Appeal, fourteen days from lodging the Notice for the Record of Appeal, with costs of the application reserved to the intended appeal.

p. 2

Legal principles established

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  • A single Judge of the Court of Appeal has an unfettered discretion under rule 4(1) to extend the time for filing a fresh Notice of Appeal and Record of Appeal following the striking out of the Record of Appeal originally filed.
  • Where the respondent does not oppose an extension-of-time application and the extension sought is modest, the discretion may properly be exercised in favour of the applicant.

Court orders

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  1. 1.The time within which the applicant Francis Mburu Njoroge may lodge and serve his Notice of Appeal is extended to expire seven days from 27th July 2007 (the date of the ruling).
  2. 2.The Record of Appeal shall be lodged and served within fourteen days from the lodging of the Notice of Appeal.
  3. 3.Costs of the application shall be in the intended appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2643 of 1986
Jurisdiction invoked
Rule 4(1) of the Court of Appeal Rules - the discretion of a single Judge to extend time for filing a Notice of Appeal and Record of Appeal

Quotable passages

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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 hereby order that the time within which the application Francis Mburu Njoroge may lodge and serve his Notice of Appeal is extended to expire seven days from today.
p. 2Final orders - extension of time for the Notice of Appeal
I hereby further order that the Record of Appeal shall be lodged and served within fourteen days from the lodging of the Notice of Appeal.
p. 2Final orders - timeline for lodging the Record of Appeal
Costs of this application shall be in the intended appeal.
p. 2Costs of the application
In applications under rule 4 (1), as a single Judge, have an unfettered discretion to extend the time for filing a fresh Notice of Appeal and Record of Appeal following upon the striking out of the Record of Appeal originally filed.
p. 2Discretion of a single Judge under rule 4(1)

Issues in the judgment

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minor

The court states it is granting the 21-day extension sought, yet the operative orders set a different timetable (seven days from the ruling for the Notice of Appeal and fourteen days from lodging the Notice for the Record of Appeal). The reasoning and the disposition are in tension: 'Given that the respondent does not oppose the application and that the extension sought is 21 days I exercise my discretion in favour of granting the extension of time sought.' versus 'I hereby order that the time within which the application Francis Mburu Njoroge may lodge and serve his Notice of Appeal is extended to expire seven days from today.'

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, "FRANCIS MBURU NJOROGE v PETER KABIBI KINYANJUI & another [2007] KECA 45 (KLR)", Case Analysis (2007). Civil Appli. Nai 71 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/45/eng@2007-07-27

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