Sam Kiplagat & 1 other v Charles Wanjohi Wathuku
The bottom line
#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
#Executive summary
#Key legal issues
#Application of Rule 4 discretion to extend time
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
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.
Invocability of the overriding objective (Sections 3A and 3B, Appellate Jurisdiction Act) where not pleaded
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
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.
Diligence expected of a litigant seeking to preserve an intended appeal
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
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 28th June 2016 seeking extension of time to file and serve the record of appeal is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.