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Court of AppealAllowedApplication dated 8th May 2018

University of Nairobi v Kevin Mbwaya & 62 others [2018] KECA 23 (KLR)

Court of Appeal
20 December 2018
1,163 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave the University of Nairobi more time to appeal, but made clear that poorly explained delays are costly.

What this practically means

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Executive summary

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The University of Nairobi sought an extension of time to lodge a notice of appeal against a judgment of the Constitutional and Human Rights Division of the High Court (Mwita, J) delivered on 29th September 2017, which had declared that the respondents were valid students of the University having been enrolled at the Kenya Polytechnic University College when it was a constituent college of the University, nullified degree certificates issued to them by the Technical University of Kenya, and ordered that their names be forwarded for graduation by the University. The University's application under Article 159(2)(d) of the Constitution and Rule 4 of the Court of Appeal Rules was lodged on 9th May 2018, approximately seven months after the judgment. The University attributed the delay to indefinite shutdowns caused by students' unrest and nationwide lecturers' strikes between October 2017 and March 2018, which it said prevented timely instructions to its advocates. The respondents opposed, submitting there was no reasonable explanation for the delay. The Commission for University Education did not oppose. Applying the Fakir Mohamed principles, the Court found the applicant's explanation scanty and unconvincing, noting an unexplained residual delay of about one month after normalcy returned. Nevertheless, considering the short unexplained delay and that the matter raised issues of public importance involving public institutions, the Court reluctantly allowed the application, granting the extension on strict timelines - notice of appeal within 7 days and record of appeal within 30 days - with the applicant bearing the costs of the application.

Questions the Court framed

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

  1. 1.Whether the applicant has given a reasonable and sufficient explanation for the delay of approximately seven months in lodging the notice of appeal and the application for extension of time
  2. 2.Whether the discretion under Rule 4 of the Court of Appeal Rules should be exercised in favour of the applicant

Key legal issues

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01

Whether the explanation offered for the delay in lodging the notice of appeal and the application for extension of time was adequate

Holding

The Court found the applicant had not done a good job of explaining itself; details were lacking, and there was no explanation for the approximately one month of delay after normalcy returned to the University in March 2018 before the application was lodged in May 2018.

Reasoning

The judgment of the High Court was delivered on 29th September 2017, but the application was only filed on 9th May 2018, roughly seven months later. The applicant attributed the delay to university shutdowns from students' unrest and lecturers' strikes between October 2017 and March 2018. The Court found the supporting affidavit scanty in details and noted the unexplained residual delay of approximately one month after normalcy returned in March 2018.

p. 2
02

Whether the Court's discretion under Rule 4 should nonetheless be exercised in the applicant's favour

Holding

Despite the inadequate explanation, the Court reluctantly exercised its discretion in favour of the applicant, considering the unexplained delay was only approximately one month and that the matter raised issues of public importance involving public institutions.

Reasoning

The Court balanced the inadequacy of the explanation against the relatively short residual delay of about one month and the public importance of the matter, which involves public institutions and the professional status of engineering graduates. Weighing these factors, it granted the extension but attached strict timelines and made the applicant bear the costs, reflecting its reluctance.

p. 2

Legal principles established

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  • An application for extension of time under Rule 4 involves the exercise of judicial discretion, considering factors such as the period and reason for delay, chances of success, prejudice to the respondent and whether the matter raises issues of public importance.
  • Where the Court is permitted to exercise its discretion to extend time for compliance with statutory timelines, the reasons for failure to meet those timelines must be sufficiently set out; scanty or unexplained delay may be excused reluctantly where the matter raises issues of public importance.

Court orders

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  1. 1.Prayer 2 of the application dated 8th May 2018 allowed - extension of time granted to file the notice of appeal from the judgment of the High Court
  2. 2.The applicant to file and serve its notice of appeal within 7 days of the date of delivery of the Ruling
  3. 3.The applicant to thereafter file and serve its memorandum of appeal and record of appeal within 30 days from the date of filing of the notice of appeal
  4. 4.The applicant to bear the costs of the application

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya, Constitutional and Human Rights Division
Petition dated 25th August 2015
Jurisdiction invoked
Article 159(2)(d) of the Constitution and Rule 4 of the Court of Appeal Rules

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.

An application under Rule 4 of the Rules of the Court involves the exercise of judicial discretion.
p. 2Nature of Rule 4 applications
I do not think the applicant has done a good job of explaining itself. Details are lacking.
p. 2Adequacy of explanation for delay
I reluctantly exercise the court's discretion in favour of the applicant and allow prayer 2 of the application dated 8th May 2018.
p. 2Final orders - extension granted
The applicant shall file and serve its notice of appeal with 7 days of the date of delivery of this Ruling. It shall thereafter file and serve its memorandum of appeal and record of appeal within 30 days from the date of filing of the notice of appeal.
p. 2Final orders - timelines imposed

Issues in the judgment

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minor

The block quotation from Fakir Mohamed v Joseph Mugambi appears garbled/corrupted in the text, merging the quote with unrelated words and references to other authorities.

minor

The application is variously dated 8th May 2018 and 9th May 2018 (the date of lodgment) in different passages of the ruling.

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, "University of Nairobi v Kevin Mbwaya & 62 others [2018] KECA 23 (KLR)", Case Analysis (2018). Application dated 8th May 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/23/eng@2018-12-20

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