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Court of AppealDismissedNot stated in judgment (Civil Application ruled on 5 April 2017 at Nyeri)· [2017] KECA 572 (KLR)

Sam Kiplagat & 1 other v Charles Wanjohi Wathuku

Court of Appeal of Kenya
5 April 2017
2,438 words in judgment
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The bottom line

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The Court of Appeal refused to excuse a 17-month delay in filing an appeal record, showing Kenyan courts punish unexplained inaction even in defamation cases.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nyeri (Waki, JA) delivered on 5 April 2017 on a notice of motion dated 28 June 2016 seeking, under Rule 4 of the Court of Appeal Rules, an extension of time to file and serve a record of appeal out of time. The intended appeal was against a defamation judgment of Byram Ongaya J delivered on 5 December 2014, in which the respondent was awarded Ksh. 4 million over a story depicting him as having corruptly bribed a judge. The applicants filed and served a notice of appeal timeously, but the record of appeal due by 16 February 2015 was never filed; the motion was lodged on 15 July 2016, about one year and five months late. Counsel for the applicants attributed part of the delay to negotiations over a consent order on stay of execution, resolved on 25 November 2015, and invoked the overriding objective (Sections 3A and 3B of the Appellate Jurisdiction Act) though without pleading it. The respondent showed the applicants had collected certified proceedings on 22 September 2015 yet did nothing thereafter, even after he moved to strike out their notice of appeal. The court restated the settled, unfettered Rule 4 discretion and its factors, and held that Article 159(2)(d) and the oxygen principles are not a panacea for blatant abuse of rules. Finding the delay unexplained and the balance tilted to the respondent's right to enjoy the fruits of judgment, the court declined to extend time and dismissed the application with costs.

Key legal issues

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01

Application of Rule 4 discretion to extend time

Holding

The discretion is unfettered but must be exercised on relevant, material factors; the applicants' delay of about one year and five months was largely unexplained after the stay-negotiation period ended in November 2015

Reasoning

The court recounted the settled Rule 4 factors (delay, reasons, chances of appeal, prejudice) as adopted in Fakir Mohamed and Habo Agencies, and found the applicants had done nothing between November 2015 and July 2016 despite having collected proceedings in September 2015 and despite a pending application to strike out their notice of appeal.

p. 4
02

Invocability of the overriding objective (Sections 3A and 3B, Appellate Jurisdiction Act) where not pleaded

Holding

Sections 3A and 3B could not be relied upon because they were not pleaded in the motion, and in any event would not avail parties who blatantly abuse the Rules of Court

Reasoning

Citing the Supreme Court in Obado and Kiage JA in Salat, the court held that Article 159(2)(d) is not a panacea for procedural shortfalls and courts must not provide succour to parties with scant respect for rules and timelines; the right to enjoy the fruits of judgment must be balanced against the right of appeal.

p. 4
03

Diligence expected of a litigant seeking to preserve an intended appeal

Holding

A diligent litigant applies for certified proceedings, copies correspondence to the respondent's counsel, and obtains a certificate of delay so that the proviso to Rule 82(1) can avail them

Reasoning

The court noted the applicants filed and served a notice of appeal but made no further efforts; the letter bespeaking copies was not copied to the respondent's counsel and no certificate of delay was obtained - actions that would have shown a live intention to appeal and endeared them to a court of equity.

p. 4

Legal principles established

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  • The discretion under Rule 4 to extend time is unfettered and is exercised on relevant factors including period and reason for delay, chances of the appeal succeeding, and prejudice to the respondent
  • Article 159(2)(d) and the overriding objective are not a licence to disregard rules of procedure and timelines; extension of time requires material on which the court can exercise its discretion

Court orders

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  1. 1.The notice of motion dated 28th June 2016 seeking extension of time to file and serve the record of appeal is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time); Sections 3A and 3B of the Appellate Jurisdiction Act (overriding objective) discussed

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, "Sam Kiplagat & 1 other v Charles Wanjohi Wathuku", Case Analysis (2017). Not stated in judgment (Civil Application ruled on 5 April 2017 at Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/572/eng@2017-04-05

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