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Court of AppealAllowedNot stated in the judgment (amended Notice of Motion under Rule 4 of the Court of Appeal Rules)

Chemaringo v Kibet (Civil Application 91 of 2017) [2018] KECA 701 (KLR)

Court of Appeal of Kenya
22 March 2018
JMJ. Mohammed
1,295 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 allowed a delayed appeal to proceed, confirming there's no time limit on delay if you can explain it convincingly.

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 seeking enlargement of time to file and serve the Notice of Appeal, Memorandum of Appeal and Record of Appeal. The applicant, whose appointment as Chief of Sengwer Location had been quashed by a decree of the High Court (Chemitei, J.) dated 31st October 2016, attributed the delay to his pending stay application before the High Court and to the file being in the custody of the learned Judge. A earlier Rule 5(2)(b) application had on 19th October 2017 secured a 12-month stay of execution of the High Court judgment. The respondent opposed, contending the intended appeal was not arguable because the applicant was unqualified for the position; the Hon. Attorney General, as interested party, supported the application, urging that mistakes of counsel should not be visited on the client. Applying the settled Rule 4 factors from Fakir Mohammed, Mwangi v Kenya Airways, Leo Sila Mutiso and Wasike v Swala, J. Mohammed JA held that no minimum or maximum period of delay is prescribed and that a plausible and satisfactory explanation is the key to discretionary favour. The draft memorandum raised an arguable issue — whether waiver of the minimum age requirement sufficed for the applicant's appointment — and no substantial prejudice to the respondent was shown. The application was allowed with a direction to file and serve the appeal documents within 30 days.

Questions the Court framed

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

  1. 1.Whether the Court should enlarge time for the applicant to file and serve the Notice of Appeal, Memorandum of Appeal and Record of Appeal
  2. 2.Whether the delay in filing the notice of appeal and record of appeal was satisfactorily explained
  3. 3.Whether the intended appeal is arguable
  4. 4.Whether the respondent would suffer prejudice if the extension is granted

Key legal issues

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01

Factors for extension of time under Rule 4

Holding

The Court's discretion is unfettered and guided by relevant factors: period and reason of delay, arguability of the appeal, and prejudice to the respondent.

Reasoning

The Court restated the settled factors from Fakir Mohammed and Mwangi v Kenya Airways: delay period, reason for delay, chances of the appeal succeeding, and prejudice to the respondent. It stressed there is no minimum or maximum period of delay; what matters is a plausible and satisfactory explanation. Finding merit in the draft memorandum of appeal and no substantial prejudice to the respondent, the Court exercised its discretion in the applicant's favour and allowed enlargement of time.

p. 3
02

Meaning of an arguable appeal

Holding

An arguable appeal is one raising a bona fide issue for determination, not one that must necessarily succeed.

Reasoning

The Court perused the draft memorandum of appeal and found the appeal arguable because it raised the question whether waiver of the minimum age requirement sufficed to enable the applicant to be employed as Chief of Sengwer Location. It emphasized that arguability is a lower threshold than ultimate success, and found the respondent would not suffer substantial prejudice if time were enlarged.

p. 3

Legal principles established

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  • The decision to extend time under Rule 4 is discretionary and guided by the length of and reason for delay, arguability of the appeal and prejudice to the respondent; an arguable appeal need not be one that will succeed.

Court orders

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  1. 1.The application is allowed
  2. 2.The applicants to file and serve the Notice of Appeal, Memorandum of Appeal and Record of Appeal within 30 days from the date of the ruling

The bench

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

JM
majority

Wrote the judgment

On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (inherent discretion of a single Judge of Appeal to extend time)

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.

The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained.
p. 3Extension of time — explanation of delay
I have perused the Draft Memorandum of Appeal and find that the appeal is arguable as it raises issues for determination inter alia, whether the waiver of the minimum age requirement was suficient to enable the applicant to be employed as the Chief of Sengwer Location.
p. 3Arguability of intended appeal
I direct the applicants to file and serve the Notice of Appeal, Memorandum of Appeal and Record of Appeal within 30 days from the date hereof.
p. 4Final orders — enlargement of time

Issues in the judgment

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minor

The case title and case number are not stated in the judgment text; the parties are referred to only as applicant, respondent and interested party.

minor

The parties are referred to inconsistently as 'the applicant' and 'the applicants' within the same judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chemaringo v Kibet (Civil Application 91 of 2017) [2018] KECA 701 (KLR)", Case Analysis (2018). Not stated in the judgment (amended Notice of Motion under Rule 4 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/701/eng@2018-03-22

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