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Court of AppealDismissedCivil Application (Notice of Motion dated 24th May 2016)

James Nyasimi Kiana v David Nankone Mboa [2016] KECA 39 (KLR)

Court of Appeal of Kenya
16 December 2016
AMA.K. Murgor
2,051 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend appeal time because an existing notice of appeal was already on record and the long delay went unexplained.

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 2010 seeking extension of time to file and serve a notice of appeal and a record of appeal against a High Court judgment delivered on 31st October 2014. The applicant, who had been represented by three successive firms of advocates, blamed his former advocates for the delay of approximately 19 months in bringing the application. The respondent countered that a request for proceedings and a notice of appeal had been filed timeously in November 2014 by the firm of Ndemo Mokaya and Company Advocates, and that no plausible explanation had been given for the delay. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi - the length of and reason for the delay, the chances of success, and prejudice to the respondent - Murgor JA found the delay unexplained: the applicant's account of dual representation by the firms of Bosire Gichana and Ndemo Mokaya was unsupported by any affidavit from those firms, and the explanation regarding consent between Mr. Begi's firm and the former advocates was untenable since the advocates on record were Ndemo Mokaya. Further, relying on Ocean Freight Shipping Company Limited v Oakdale Commodities Limited, the court held that since a valid notice of appeal filed on 14th November 2014 was already on record, granting the orders as prayed would create two notices of appeal; the correct course was to seek validation of the existing notice, and the application as framed was incompetent. The draft grounds of appeal were also found not to raise discernable complaints. The application was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the delay of about 19 months in filing the application for extension of time was adequately explained
  2. 2.Whether the blame attributed to former advocates suffices to justify extension of time
  3. 3.Whether the court can grant extension to file a second notice of appeal when a notice of appeal is already on record
  4. 4.Whether the intended appeal is arguable
  5. 5.Whether the respondent would suffer prejudice if extension were granted

Key legal issues

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01

Principles governing extension of time under rule 4

Holding

The discretion is unfettered but must be exercised judiciously, considering length of delay, reason for delay, chances of success of the appeal, and prejudice to the respondent.

Reasoning

The court adopted the settled framework from Leo Sila Mutiso v Rose Hellen Wangari Mwangi. Applying it, the court found the applicant had not explained the delay from judgment to instruction of Mr. Begi, nor the further three months before filing. The dual, unexplained role of two advocate firms undermined the credibility of the explanation, and the draft grounds did not show arguability.

p. 2

Legal principles established

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  • Where a valid notice of appeal is already on record, an applicant under rule 4 must seek to validate the existing notice of appeal rather than extension to file a second one; an application to file a duplicate notice is incompetent.

Court orders

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  1. 1.The Notice of Motion dated 25th April 2014 is dismissed with costs to the respondent

The bench

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

AM
majority

Wrote the judgment

On appeal from
High Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules 2010

Relief refused

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Extension of time to file and serve a Notice of Appeal and Record of Appeal

The delay was not satisfactorily explained and the application as framed would result in two notices of appeal on the record, rendering it incompetent; the grounds of appeal did not raise discernable complaints of arguability.

p. 4

Costs

The Notice of Motion is dismissed with costs to the respondent

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.

It is now settled that the decision whether to extend the time for appealing is essentially discretionary.
p. 2Discretionary nature of extension of time
The applicant has ignored the notice of appeal filed on 14 th November 2014, and to grant the orders as prayed would result in two notices of appeal on the record.
p. 4Duplicate notices of appeal
The Notice of Motion dated 25th April 2014 is dismissed with costs to the respondent.
p. 4Final orders

Issues in the judgment

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material

The judgment states the application is by a Notice of Motion dated 24th May 2016, but the final order dismisses 'The Notice of Motion dated 25th April 2014', an apparent internal inconsistency in the dates.

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, "James Nyasimi Kiana v David Nankone Mboa [2016] KECA 39 (KLR)", Case Analysis (2016). Civil Application (Notice of Motion dated 24th May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/39/eng@2016-12-16

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