Samuel Njirani Ngabia v Michael Thungu Wanyoike & another [2009] KECA 16 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal because the applicant offered no good reasons, no draft appeal grounds, and delayed six months.
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 applicant should be granted leave to file a Notice of Appeal and Record of Appeal out of time
- 2.Whether the delay in filing the Notice of Appeal and Record of Appeal was inordinate and adequately explained
- 3.Whether the intended appeal is frivolous
- 4.Whether the respondent would suffer undue prejudice if the extension were granted
- 5.Whether the application is competent, given that its heading refers to a ruling by a wrongly named judge
Key legal issues
#Requirements for extension of time under Rule 4
The application fails all the established requirements: the intended appeal is not shown to be arguable, the six-month delay is unexplained, and the respondent would be gravely prejudiced by continued denial of the fruits of a 2003 judgment.
The court applied the Wasike v Swala criteria. The applicant neither set out intended grounds nor annexed a draft memorandum of appeal or the ruling. No notice of appeal had been filed despite it not requiring copies of the ruling. The underlying judgment dated from 2003, nearly six years earlier, so keeping the respondent from the fruits of judgment constituted the greatest prejudice.
Competence of the application
The application is incompetent because its heading and supporting affidavit refer to a ruling by Khaminwa J when the ruling was in fact given by Khamoni J.
The 1st respondent raised the misnomer, and the court accepted that the reference to a non-existent ruling rendered the application patently incompetent, independently of the failure to satisfy the Rule 4 criteria.
Overriding objective
Granting the application would subvert the overriding objective by generating further delay and costs.
The court invoked sections 1A and 1B of the Civil Procedure Act and sections 3A and 3B of the Appellate Jurisdiction Act, holding that allowing an unmeritorious, late application would prolong litigation already six years old.
Legal principles established
#- Before the Court exercises its discretion to extend time, the applicant must show that the intended appeal is not frivolous, that the application was brought without inordinate delay, and that the respondent would not suffer undue prejudice if the application were allowed.
- Filing a Notice of Appeal does not depend on the availability of a copy of the ruling or order appealed from.
- An application that misdescribes the decision it seeks to challenge is patently incompetent.
Court orders
#- 1.The application dated 24th June 2009 for leave to file a Notice of Appeal and Record of Appeal out of time is dismissed with costs to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- H.C.C.C. 792 of 2003
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (unfettered discretion to extend time)
Relief refused
#Leave to file a Notice of Appeal out of time
The applicant failed to show the intended appeal was not frivolous, did not explain the six-month delay, and a notice of appeal does not require a copy of the ruling
Leave to file the Record of Appeal out of time
No draft memorandum of appeal or copy of the ruling was annexed and no good reasons were given for the failure to file
Costs
Costs of the application awarded to the 1st 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.
that the appeal or the intended appeal is not frivolous, that the application has been brought without inordinate delay and that the respondent would not suffer undue prejudice if the application is not allowed
There cannot in my opinion be greater prejudice to a respondent than the frustration of keeping him away from the fruits of a judgment in his favour given nearly 6 years ago.
the application itself refers to a non existent ruling in the heading and is therefore patently incompetent
All in all, I decline to exercise my unfettered discretion in favour of the applicant and I hereby dismiss the application with costs to the 1 st respondent.
It is so ordered.
Issues in the judgment
#The judgment misstates the trial judge's name in its recital of the application, referring to 'Khaminwa J' while correctly noting the ruling was by 'Khamoni J'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Njirani Ngabia v Michael Thungu Wanyoike & another [2009] KECA 16 (KLR)", Case Analysis (2009). Application dated 24th June 2009 (arising from H.C.C.C. 792 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/16/eng@2009-12-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.