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Court of AppealDismissedApplication dated 24th June 2009 (arising from H.C.C.C. 792 of 2003)· [2009] KECA 52 (KLR)

Samuel Njirani Ngabia v Michael Thungu Wanyoike & 2 others [2009] KECA 52 (KLR)

Court of Appeal of Kenya
13 November 2009
711 words in judgment
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The bottom line

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The Court of Appeal refused to extend time for an appeal because the applicant showed no good reason for delay, no arguable appeal, and filed a flawed application.

What this practically means

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Executive summary

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This was a single-judge application under Rule 4 of the Court of Appeal Rules seeking leave to file a Notice of Appeal and Record of Appeal out of time, directed at a ruling in H.C.C.C. 792 of 2003 delivered by the High Court on 8th May 2009. The applicant, through his advocate George Korongo, argued that he applied promptly for copies of the formal order and filed the application on 24th June 2009, so the delay was not inordinate. The 1st respondent, through counsel Charles Ngugi, opposed, contending that the application was incompetent for referring to a non-existent ruling by Khaminwa J (the ruling having been given by Khamoni J), that the delay was unexplained, that filing a Notice of Appeal did not depend on obtaining the ruling, and that no draft memorandum demonstrated an arguable appeal. Applying the test in Wasike v Swala [1984] KLR 591, the court held that the applicant failed on every criterion: he set out no intended grounds and annexed neither a draft memorandum nor the ruling; no good reason was given for not filing the Notice of Appeal, which required no copies of the ruling; the six-month delay was unexplained; and the respondent would be prejudiced by continued denial of the fruits of a judgment given in 2003. The court further found the application patently incompetent and contrary to the overriding objective in sections 1A and 1B of the Civil Procedure Act and sections 3A and 3B of the Appellate Jurisdiction Act. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Requirements for extension of time under Rule 4

Holding

The application failed all the requirements: no arguable appeal demonstrated, inordinate unexplained delay, and prejudice to the respondent.

Reasoning

The court applied the Wasike v Swala criteria. The applicant neither set out intended grounds in the application nor annexed a draft memorandum of appeal or the ruling. No notice of appeal was filed despite no ruling copies being needed for that. The decision was six months old and the underlying judgment dated from 2003, so the delay was inordinate and the respondent would be prejudiced by continued denial of the fruits of judgment.

p. 2
02

Competence of the application

Holding

The application was incompetent because it referred in its heading and supporting affidavit to a ruling by Khaminwa J when the ruling was actually given by Khamoni J.

Reasoning

The 1st respondent's counsel pointed out that no ruling by Khaminwa J existed; the intended challenge was to a ruling by Khamoni J. The court held this misdescription rendered the application patently incompetent, an independent ground for dismissal apart from the failure to satisfy the Rule 4 criteria.

p. 2
03

Overriding objective

Holding

Granting the application would subvert the overriding objective under sections 1A and 1B of the Civil Procedure Act and sections 3A and 3B of the Appellate Jurisdiction Act because it would cause further delay and costs.

Reasoning

The court invoked the overriding objective principles as an additional, independent basis for dismissal, holding that allowing the application would generate further delay and costs contrary to the statutory aims of expeditious and cost-effective litigation.

p. 2

Legal principles established

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  • Before a court exercises its discretion to extend time under Rule 4, the applicant must show that the intended appeal is not frivolous, that the application was brought without inordinate delay, and that the respondent will not suffer undue prejudice.
  • An applicant for extension of time must set out the intended grounds of appeal or annex a draft memorandum of appeal and a copy of the challenged decision; counsel does not need a copy of the ruling to file a notice of appeal in time.
  • An application that refers to a non-existent ruling in its heading is patently incompetent.

Court orders

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  1. 1.The application dated 24th June 2009 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent
On appeal from
High Court of Kenya
H.C.C.C. 792 of 2003
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (Appellate Jurisdiction Act, sections 3A and 3B)

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, "Samuel Njirani Ngabia v Michael Thungu Wanyoike & 2 others [2009] KECA 52 (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/2009/52/eng@2009-11-13

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