Aineah Likuyani Njirah v Aga Khan Health Services [2009] KECA 13 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal where an eleven-month delay was unexplained, the appeal was not arguable, and the respondent would suffer prejudice.
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 intended appeal is arguable and not frivolous
- 2.Whether the delay of over eleven months in bringing the application is inordinate and, if so, whether it is satisfactorily explained
- 3.Whether the respondent would suffer prejudice if the extension of time were granted
Key legal issues
#Arguability of the intended appeal
The applicant failed to demonstrate that the intended appeal was arguable; the only ground advanced relied on new evidence neither pleaded nor submitted below
The applicant did not disclose the grounds of the intended appeal in the application or supporting affidavit. When pressed at the hearing, he alleged the medical scheme was an insurance arrangement based in New York for which he paid premiums by salary deductions. The court found this was new evidence, not pleaded in the plaint nor submitted in the superior court, and concluded the intended appeal was not shown to be arguable.
Inordinate delay and its explanation
The delay of over eleven months was inordinate and there was no reasonable explanation for it
The application was filed on 3rd July, 2009, over eleven months after judgment. The applicant blamed two firms of advocates, but the court found the notice of appointment dated 29th August, 2008 was probably a forgery given the earlier notice of change of advocates of 13th November, 2007, that the applicant corresponded personally for proceedings, filed the application in person, and produced no evidence of paying either firm. Blame of advocates was therefore rejected as implausible.
Prejudice to the respondent
The respondent would be prejudiced because the cause of action was over ten years old and further costs would be incurred without any assurance of recovery from the applicant
The court weighed the age of the claim, arising in August 1996, against the applicant's apparent lack of means. Allowing the extension would expose the respondent to further costs with no guarantee that the applicant could pay costs should the appeal fail, tipping the balance against granting the extension.
Legal principles established
#- An applicant for extension of time must satisfy the court that the intended appeal is not frivolous, that the delay is not inordinate or is explained, and that the respondent will not suffer undue prejudice
Court orders
#- 1.The application for extension of time was dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- High Court Civil Appeal No. 275 of 2004
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time to file notice of appeal and record of appeal)
Relief refused
#Extension of time to file a notice of appeal and record of appeal against the judgment of Mutungi J. dated 22nd July, 2008
The intended appeal was not shown to be arguable, the delay of over eleven months was inordinate and unexplained, and the respondent would be prejudiced
Costs
Application dismissed with costs to the respondent
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.
The applicant is required to satisfy the court, among other things, that the intended appeal is not frivolous; that the delay in bringing the application has not been inordinate and that the respondent would not suffer undue prejudice if the application is allowed (see Wasike vs. Swala [1984] KLR 591).
I conclude that the applicant has not demonstrated that the intended appeal is indeed arguable.
In the circumstances, there is no reasonable explanation for the inordinate delay.
For those reasons, I dismiss the application with costs to the respondent.
Issues in the judgment
#The judgment refers inconsistently to two letters by the respondent (17th August 1996 and 27th August 1996) as the impugned misrepresentation letter
The case number of the present application before the Court of Appeal is not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aineah Likuyani Njirah v Aga Khan Health Services [2009] KECA 13 (KLR)", Case Analysis (2009). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/13/eng@2009-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.