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Court of AppealAllowedCivil Application No. NAI 275 of 2013· [2014] KECA 443 (KLR)

Margaret Mugure v John Ndungu Gatheba [2014] KECA 443 (KLR)

Court of Appeal of Kenya
18 July 2014
1,263 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a delayed appeal to proceed because the delay was explained and no one was prejudiced.

What this practically means

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Executive summary

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This was a single-judge (in chambers) ruling of the Court of Appeal at Nairobi on a notice of motion dated 20th September 2013 by Margaret Mugure seeking leave to file her record of appeal out of time, under sections 3A and 3B of the Appellate Jurisdiction Act and Rules 1(2) and 4 of the Court of Appeal Rules. The intended appeal challenged the decision of Mutende J. of the High Court at Kericho dated 4th December 2012 in H.C.C.C. No. 13 of 2010, a fatal accidents damages claim. The applicant argued the High Court erred in computing damages on a multiplicand of Sh.700/= per month instead of per day, an error a review application had failed to correct. The respondent, though served, did not appear but opposed in a replying affidavit, citing unexplained delay and lack of merit. The court restated the principle that it will not assist indolent or negligent litigants but will grant enlargement of time to a deserving litigant who satisfactorily explains delay. Accepting that failed settlement negotiations, a dismissed review application and delayed certification of proceedings explained the delay, and finding no deponed prejudice to the respondent, Mwera JA granted the orders, deemed the record of appeal constituting Civil Appeal No. 32 of 2013 validly filed, and directed costs to be in the appeal.

Key legal issues

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01

Extension of time to file a record of appeal

Holding

Delay was sufficiently explained by attempts at out-of-court settlement, a failed review application and delay in certification of proceedings; no prejudice to the respondent was deponed to, so the orders were granted.

Reasoning

The court weighed the explanation for the delay against the interests of justice. Certified proceedings took a while to be furnished, and after collection the applicant took about six months to move, explained by failed settlement talks and a dismissed review application. The replying affidavit did not allege prejudice. The court also observed the intended appeal raised an arguable point on the multiplicand (daily versus monthly income of the deceased).

p. 3
02

Arguability of the intended appeal on the multiplicand

Holding

The issue whether the learned Judge erred in computing damages on a monthly rather than daily income of the deceased is worth consideration on appeal.

Reasoning

The court perused the amended plaint, evidence in chief and submissions and noted the pleadings and evidence stated the deceased earned Sh.700/= per day as a matatu operator, while in cross-examination the record reflected per month, and the High Court computed damages on the monthly figure. Whether the appeal succeeds was left for the full hearing.

p. 2

Legal principles established

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  • The Court will not assist an indolent or negligent litigant who fails to adhere to litigation timelines, but will grant enlargement of time to an alert and deserving litigant who satisfactorily explains the failure, in the interest of justice

Court orders

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  1. 1.Leave granted to file the record of appeal out of time
  2. 2.The record of appeal constituting Civil Appeal No. 32 of 2013 deemed validly filed
  3. 3.Costs in this application to be in the appeal
On appeal from
High Court of Kenya at Kericho
H.C.C.C. No. 13 of 2010
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 1(2) and 4 of the Court of Appeal Rules

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, "Margaret Mugure v John Ndungu Gatheba [2014] KECA 443 (KLR)", Case Analysis (2014). Civil Application No. NAI 275 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/443/eng@2014-07-18

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