Macharia & another v Githinji (Civil Application 127 of 2020) [2021] KECA 99 (KLR)
The bottom line
#Kenya's Court of Appeal gave late appellants a second chance, ruling that missing a judgment delivered without notice is an excusable delay worth accommodating.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants' application for extension of time to file a notice of appeal meets the Rule 4 criteria
- 2.Whether the delay in lodging the notice of appeal was inordinate and satisfactorily explained
- 3.Whether the intended appeal is arguable
- 4.Whether the respondent would suffer prejudice if the extension were granted
Key legal issues
#Reason for delay
The delay was excusable because the judgment was delivered in the absence of the parties and their advocates, with no notice of the rescheduled delivery date issued.
The judgment date was rescheduled in the absence of the applicants' advocate; no deposition showed that the advocate holding brief passed the date on, and no notice of delivery of the rescheduled judgment was issued to the parties or their advocates. The applicants learned of the judgment on 23rd May 2019 and promptly sought certified copies, making their explanation plausible and excusable.
Arguability of the intended appeal
The intended appeal, concerning distribution of a deceased's estate among houses and protection of purchasers, is arguable.
The draft memorandum of appeal raised issues on the substratum of the succession protests, the treatment of purchasers' interests, evidential findings and the mode of distribution. These are not frivolous and warrant the court's intervention and the respondent's response; merit is not determined with finality by a single judge.
Prejudice and the non-technicality principle
The respondent's pending execution does not outweigh the applicants' constitutionally underpinned right of appeal under Article 159's non-technicality principle.
Balancing the respondent's prejudice from stalled execution against the injustice of denying the applicants an extension, the court applied Article 159(2)(d) and the entrenched right to be heard, concluding the circumstances did not warrant curtailing the intended appellate right where the appeal is arguable.
Legal principles established
#- Extension of time under Rule 4 is an equitable remedy at the court's discretion, not a right, and depends on length of delay, reasons for delay, arguability of the intended appeal and prejudice to the opposite party.
- An arguable appeal need not necessarily succeed; it suffices that it warrants full argument before the court.
- The right to be heard is constitutionally entrenched and a decision reached in violation of it will be nullified as a breach of natural justice, informing the exercise of the Rule 4 discretion.
Court orders
#- 1.The applicants have fourteen (14) days from the date of delivery of the ruling to file and serve a notice of appeal
- 2.The applicants have sixty (60) days from the date of filing of the notice of appeal to file a record of appeal
- 3.Costs of the application to abide the outcome of the intended appeal
- 4.Thereafter parties to proceed according to law
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nyeri
- Succession Cause No. 39 of 2009
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretion of a single Judge of Appeal to extend time)
Quotable passages
#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 applicants have fourteen (14) days from the date of delivery of the ruling to file and serve a notice of appeal.
Costs of the application to abide the outcome of he intended appeal.
A plausible and satisfactory explanation for delay is the key that unlocks the Court's fiow of discretionary power with the only caveat being that there has to be valid and clear reason upon which discretion can be favourably exercised.
An arguable appeal is not one that must necessarily succeed but is one which ought to be argued fully before court
Issues in the judgment
#The applicants are described variously as objectors in 'Succession Cause No. 39 of 2019' and the judgment below is described as being in 'Succession Cause No. 39 of 2009', an internal inconsistency in the cause number/year.
The application date is stated inconsistently as 9th August 2019 in the opening and 7th August 2019 in the delay computation.
The computation of the delay period from the deadline for lodging the notice of appeal is internally inconsistent, stating 110 days in submissions but six months and about twelve days in the court's own computation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macharia & another v Githinji (Civil Application 127 of 2020) [2021] KECA 99 (KLR)", Case Analysis (2021). Miscellaneous Application (Notice of Motion dated 9th August 2019) arising from Nyeri Succession Cause No. 39 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/99/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.